22-475
2005
109TH CONGRESS 1ST SESSION
HOUSE OF REPRESENTATIVES
Rept. 109-174
JULY 18, 2005- Ordered to be printed
USA PATRIOT AND TERRORISM PREVENTION REAUTHORIZATION ACT OF 2005
22-475
2005
109TH CONGRESS 1ST SESSION
HOUSE OF REPRESENTATIVES
Rept. 109-174
JULY 18, 2005- Ordered to be printed
1st Session
Part 1
--USA PATRIOT AND TERRORISM PREVENTION REAUTHORIZATION ACT OF 2005
[To accompany H.R. 3199]
[Including cost estimate of the Congressional Budget Office]
| CONTENTS | Page | |
| The Amendment | 2 | |
| Purpose and Summary | 5 | |
| Background and Need for the Legislation | 6 | |
| Hearings | 47 | |
| Committee Consideration | 47 | |
| Vote of the Committee | 47 | |
| Committee Oversight Findings | 71 | |
| New Budget Authority and Tax Expenditures | 72 | |
| Congressional Budget Office Cost Estimate | 72 | |
| Performance Goals and Objectives | 73 | |
| Constitutional Authority Statement | 73 | |
| Section-by-Section Analysis and Discussion | 73 | |
| Changes in Existing Law Made by the Bill, as Reported | 81 | |
| Markup Transcript | 95 | |
| Dissenting Views | 444 |
The amendment is as follows:
Strike all after the enacting clause and insert the following:
H.R. 3199, introduced by Chairman F. James Sensenbrenner, Jr., on July 11, 2005, would reauthorize the expiring provisions in the USA PATRIOT Act and two provisions in the Intelligence Reform and Terrorism Prevention Act of 2004 that would expire within the next two years, as amended. The bill extended the sunset for 10 years on two of the provisions that had amended the Foreign Intelligence Surveillance Act relating to Foreign Intelligence Surveillance Court orders for roving wiretaps and for business records.
H.R. 3199 is based on four years of extensive oversight consisting of hearing testimony, Department of Justice Inspector General reports, briefings, and oversight correspondence. Since April of this year alone, this Committee has heard testimony from 35 witnesses during 11 hearings on the USA PATRIOT Act. That testimony and related oversight has demonstrated that the USA PATRIOT Act has been an effective tool against both terrorists and criminals intent on harming innocent people, and therefore deserves to be reauthorized with some modifications. H.R. 3199 accomplishes this objective by reauthorizing provisions set to sunset and making some improvements. The bill modifies the following provisions of USA PATRIOT Act: (1) Section 203(b) to allow for notification to a court that criminal wiretap information has been shared; (2) section 206 to clarify when and where law enforcement is authorized to use a multi-point or roving wiretap; (3) section 207 to further extend the maximum duration of orders for electronic surveillance and physical searches targeted against all agents of foreign powers who are not U.S. persons; (4) section 212 to require an annual report to the House and Senate Judiciary Committees by the Attorney General, which sets forth the number of accounts subject to a section 212 disclosure and a summary of the basis for disclosure in certain circumstances; (5) section 215 to clarify that the information likely to be obtained is reasonably expected to: be (A) foreign intelligence information NOT concerning a U.S. person or (B) relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities; (6) section 215 to clarify that a FISA 215 order may be challenged; (7) section 215 to clarify that a recipient of a 215 order may consult with a lawyer and the appropriate people necessary to challenge and comply with the order; (8) section 215 to clarify that the order will only be issued `if the judge finds that the requirements have been met;' (9) section 215 to set up a judicial review process that authorizes the judge to set aside or affirm a 215 order that has been challenged. The bill makes permanent sections 201, 202, 203 (b) and (d), 204, 207, 209, 212, 214, 217, 218, 220, 223, and 225, which were scheduled to sunset on December 31, 2005, and extends until December 31, 2015 the sunset of sections 206 and 215. In addition, the bill makes permanent section 6001 of the Intelligence Reform and Terrorism Prevention Act (IRTPA), which provides an additional definition for `Agent of a Foreign Power,' to cover the `lone wolf' under 50 U.S.C. 1801(b)(1). The legislation repeals section 6603(g) of the IRTPA, which would sunset section 6603, the `Additions to Offense of Providing Material Support to Terrorism'. Finally, H.R. 3199 would enhance security of mass transportation; Department of Justice Inspector General review, and Judicial and Congressional oversight.
The terrorist attacks on the World Trade Center and the Pentagon took more than 3,000 lives, caused billions in economic losses, triggered U.S. military intervention in Afghanistan to topple the Taliban regime, and led to the passage of the USA PATRIOT Act and other anti-terrorism bills. Another example of anti-terror legislation that enhanced law enforcement authorities and improved information sharing was the `Homeland Security Act of 2002, 1
[Footnote] ' which created the Department of Homeland Security. This legislation incorporates H.R. 4598, the `Homeland Security Information Sharing Act' to further improve information sharing with Federal and state and local officials. The Homeland Security Act also updated law enforcement authorities by including: H.R. 3482 (107th), the `Cyber Security Enhancement Act of 2002,' which increased penalties for cybercrimes and cyberterrorism, and H.R. 4864 (107th), the `Anti-Terrorism Explosives Act,' which strengthened penalties for the unlawful possession of explosive materials.
[Footnote 1: Pub. L. No. 107-296.]
To respond to terrorist threats, Congress also has passed legislation to tighten security at America's airports, 2
[Footnote] to fundamentally reform the Immigration and Naturalization Service, 3
[Footnote] and to enhance border security. 4
[Footnote] Congress also created the National Commission on Terrorist Attacks Upon the United States (the `9/11 Commission'), an independent, bipartisan commission created in 2002 to examine the circumstances surrounding the September 11, 2001 terrorist attacks, including preparedness for and the immediate response to the attacks. In July 2004, the Commission issued `The 9/11 Commission Report: Final Report of the National Commission on Terrorists Attacks Upon the United States.' The 9/11 Commission noted that most of the USA PATRIOT Act provisions are `relatively noncontroversial, updating America's surveillance laws to reflect technological developments in a digital age. Some executive actions that have been criticized are unrelated to the Patriot Act. The provisions in the Act that facilitate the sharing of information among intelligence agencies and between law enforcement and intelligence appear, on balance, to be beneficial. Because of concerns regarding the shifting balance of power to the government, we think that a full and informed debate on the Patriot Act would be healthy.' 5
[Footnote]
[Footnote 2: Air Transportation Safety and System Stabilization Act, Pub. L. No. 107-42, 115 Stat. 230 (2001).]
[Footnote 3: Barbara Jordan Immigration Reform and Accountability Act, 107th Cong. (2002).]
[Footnote 4: Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L. No. 107-173, 116 Stat. 543 (2002).]
[Footnote 5: The 9/11 Commission Report: Final Report of the National Commission on Terrorists Attacks Upon the United States p. 394 (2004).]
In addition to these legislative initiatives, the House Committee on the Judiciary has conducted nearly a 100 hearings to better protect the American people against terrorist attacks since September 11, 2001. Many of those hearings examined legislative initiatives that were adopted as part of the `Intelligence Reform and Terrorism Prevention Act of 2004,' 6
[Footnote] which responded to the 9/11 Commission Report and was signed into law on December 17, 2004, and H.R. 418, the `Real ID Act of 2005,' which passed the House by a roll call vote of 229 to 198. 7
[Footnote]
[Footnote 6: Pub. L. No. 108-458, 118 Stat. 3638 (2004).]
[Footnote 7: Roll no. 27.]
1. Congressional Response--the USA PATRIOT Act
To better equip Federal law enforcement and the intelligence community with the resources necessary to confront these modern threats, Chairman Sensenbrenner introduced H.R. 2975, to `Provide Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,' on October 2, 2001. H.R. 2975 was reported unanimously by the Judiciary Committee. The House and Senate combined their versions of the legislation into H.R. 3162, the `Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,' (USA PATRIOT Act). This legislation incorporated provisions of H.R. 3004 (107th), the `Financial Anti-Terrorism Act,' which increased penalties for money laundering and financing terrorist organizations; and H.R. 3160 (107th), the `Bioterrorism Prevention Act of 2001,' which provided law enforcement personnel greater resources to assess and prevent biological attacks on American soil. The USA PATRIOT Act was signed into law by President Bush on October 26, 2001. 8
[Footnote]
[Footnote 8: Pub. L. No. 107-56, 115 Stat 272 (codified as amended in scattered sections of 18 U.S.C. (2003)).]
The USA PATRIOT Act modernized investigative tools to effectively fight the advanced technologies used by terrorists and criminals. The USA PATRIOT Act also greatly improved information sharing between law enforcement and the intelligence community.
A. Investigative Authorities
The USA PATRIOT Act was designed to assist in the prevention of future terrorist activities as well as in the prevention of a broad range of criminal activity that often furthers those activities. The law increased penalties for Federal terrorism offenses and provided for extended post-incarceration supervised release for persons convicted of such offenses. The bill strengthened Federal money laundering laws, added new terrorism offenses, updated the bioterrorism laws, funded first responders, and modified immigration law to increase the Federal Government's ability to prevent foreign terrorists from entering the United States. The Act also streamlined and updated the investigative authorities for law enforcement and the intelligence community.
`Many of the tools the Act provides to fight terrorism have been used for decades to fight organized crime and drug dealers, and have been reviewed and approved by the courts. As Sen. Joe Biden (D-DE) explained during the floor debate about the Act, `the FBI could get a wiretap to investigate the mafia, but they could not get one to investigate terrorists. To put it bluntly, that was crazy! What's good for the mob should be good for terrorists.' 9
[Footnote]
[Footnote 9: http://www.lifeandliberty.gov/, citing the (Cong. Rec., 10/25/01).]
Another example of an authority that was codified in the Act is the long-standing discretionary authority of Federal judges to grant law enforcement the authority to use `roving wiretaps' to investigate ordinary crimes, including drug offenses and racketeering, under Federal criminal law. When a judge issues a roving wiretap order, law enforcement can apply the wiretap to a particular suspect, rather than a particular phone or communications device. Drug dealers often use a cell phone, throw it away and use another cell phone, to carry out their illegal activity. Thus, without the authority to use a roving wiretap law enforcement would not be able to effectively investigate these crimes.
Prior to the enactment of the USA PATRIOT Act, a Federal judge could issue an order for a wiretap in a national security or an intelligence investigation similar to a wiretap in a criminal case. The law, however, failed to contain authority similar to the criminal law that allowed a Federal judge to issue a `roving wiretap' order in a national security or an intelligence case. International terrorists and spies are just as sophisticated as drug dealers and are trained to thwart surveillance by rapidly changing locations and communication devices such as cell phones. Accordingly, the USA PATRIOT Act authorized the courts the discretion to grant agents permission to use the same techniques in national security investigations to track terrorists that are used in criminal cases.
[Footnote 10: ]
[Footnote 10: http://www.lifeandliberty.gov/.]
B. Information Sharing
A lack of full, free, and timely information sharing between Federal law enforcement and intelligence agencies had been a problem, long before the 9/11 attacks. Prior to the 9/11 attacks, the Government had made attempts to improve information sharing. For example, different centers, such as the National Drug Intelligence Center, have been created to focus on sharing information on specific issues. While these centers helped, Government-wide improvement was still needed. The lack of information sharing stemmed from the distinct historical roles and cultures of law enforcement and the intelligence community, and from certain legal restrictions.
After the 9/11 attacks, criticism increased that the Intelligence Community, especially the CIA and FBI, failed to share pertinent intelligence information, and as a result, had failed to `connect the dots' in a way that might have uncovered and enabled prevention of the attacks. The criticism was twofold: First, collecting agencies had not integrated and evaluated all the relevant information they had. Second, they had failed to ensure that relevant information they had collected was shared with other agencies that would need it to prevent attacks such as those that occurred.
The Administration and the Congress took immediate action to reduce statutory impediments to sharing appropriate information. First, the USA PATRIOT Act, 11
[Footnote] began to break down the barriers to facilitate information sharing between Federal law enforcement officials and the Intelligence Community. `The premise of the USA-Patriot Act is that information about foreign terrorists acquired by law enforcement agencies, including grand jury information, should be available to intelligence agencies. Analysts would be able to put together the larger picture of groups plotting against U.S. interests.' 12
[Footnote]
[Footnote 11: Pub. L. No. 107-56, 115 Stat. 242.]
[Footnote 12: Richard Best, Intelligence and Law Enforcement: Countering Transnational Threats to the U.S. CRS Report #RL30252, December 3, 2001, p. 30.]
As mentioned earlier, H.R. 4598, the `Homeland Security Information Sharing Act' continued the effort to break down barriers by requiring the President to create procedures to strip out classified information so that state and local officials may receive relevant information without clearances. H.R. 4598 also incorporated H.R. 3285, the `Federal-Local Information Sharing Partnership Act of 2001,' to remove the barriers for state and local officials to share law enforcement and intelligence information with Federal officials. H.R. 4598 was added to the Homeland Security Act, which became Public Law No. 107-296.
2. Implementation and Use of the USA PATRIOT Act
Since enactment of the USA PATRIOT Act, the Department of Justice has used many of the tools authorized in the Act in a comprehensive campaign to detect and prosecute those who have committed, or seek to commit, terrorist crimes. For example, as of the fall of 2004, the Department of Justice has conducted terrorism investigations that have resulted in the charging of 310 defendants with criminal offenses, of whom 179 have already been convicted. These investigations have led to the discovery and disruption of over 150 terrorist cells. In addition, the tools provided by the USA PATRIOT Act have enabled the Federal Government to remove from the United States over 515 individuals who were linked to the September 11th investigation. The Federal Government has also been able to secure at least 23 convictions or guilty pleas as the result of 70 terrorist financing investigations. Importantly, these examples, and all other activities conducted under the authorities of the USA PATRIOT Act, have occurred without a single substantiated allegation of civil liberties violations on the part of Department of Justice employees. 13
[Footnote]
[Footnote 13: As of the September 13, 2004 Report Congress on the Implementation of Section 1001 of the USA PATRIOT Act, only one allegation of civil liberties violations may be related to the use of a USA PATRIOT Act provision, and the investigations relating to this allegation are still underway.]
A. Oversight Hearings during the 109th Congress
During the 109th Congress, the Committee on the Judiciary held 2 Full Committee and 8 Subcommittee oversight hearing on all of the provisions of USA PATRIOT Act that will expire on December 31, 2005 and several that are not subject to the sunset.
1. May 6, 2005, Hearing with Attorney General Gonzales
On May 6, 2005, Attorney General Gonzales testified before the Full Committee on the Judiciary. That hearing focused on the use of the law enforcement authorities granted under the USA PATRIOT Act; whether these tools have, thus far, proved useful to the Government's efforts in fighting terrorism; whether existing safeguards have been effective in preventing civil liberties violations; and whether modifications to the Act are needed.
2. June 8, 2005, Hearing with Deputy Attorney General James B. Comey
On Wednesday, June 8, 2005, at 10:00 a.m., the Committee on the Judiciary held its 11th oversight hearing on the Reauthorization of the USA PATRIOT Act with Deputy Attorney General James B. Comey testifying on the need to Reauthorize the USA PATRIOT Act provisions set to expire on December 31, 2005. This hearing followed the 10 subcommittee hearings and provided Members and the Department of Justice the opportunity to address any
unanswered questions regarding the USA PATRIOT Act.
3. June 10, 2005, Hearing continuation of June 8, 2005
In accordance with House Rule XI, section 2 (J)(1), additional witnesses designated by the minority were called to testify on the subject of the `Reauthorization of the USA PATRIOT Act,' as an extension (or a continuation) of the Committee's June 8, 2005 hearing. The witnesses were: Carlina Tapia-Ruano, American Immigration Lawyers Association; Dr. James J. Zogby, Arab American Institute; Deborah Pearlstein, U.S. Law and Security Program; and Chip Pitts, Amnesty International USA.
1. April 19, 2005, Hearing on Sections 203 (b) and (d) of the USA PATRIOT Act and Their Effect on Information Sharing
The Subcommittee on Crime, Terrorism, and Homeland Security of the Committee on the Judiciary held a hearing on sections 203 (b) and (d) that addressed information sharing. These sections responded to the need to improve information sharing. Four witnesses--Mr. Barry Sabin, Chief of the Counterterrorism Section of the Criminal Division of the Department of Justice; Ms. Maureen Baginski, Executive Assistant Director of the FBI for Intelligence; Congressman Michael McCaul; and Timothy Edgar, the National Security Policy Counsel for the American Civil Liberties Union--testified.
Specifically, section 203 facilitates effective sharing of information collected through the use of criminal wiretaps, grand juries, and other criminal investigations, with Executive Branch officials. To protect privacy, the USA PATRIOT Act: (1) limits such disclosures to foreign intelligence and counterintelligence information, as defined by statute; (2) restricts disclosure to officials with a need to know in performance of official duties; and (3) retains the limitations on public or other unauthorized disclosure. Prior to passage of the USA PATRIOT Act, the law hampered law enforcement from sharing information with or receiving information from other government agencies outside of law enforcement that might nevertheless relate to terrorist activities or national security.
Sec. 203(b) deals with information obtained through a criminal wiretap. The section amended section 2517 of title 18 to allow law enforcement officials to share foreign intelligence or counterintelligence (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)), or foreign intelligence information (as defined in subsection (19) of section 2510 of this title) obtained through a criminal wiretap with law enforcement, intelligence, protective, immigration, national defense, or national security personnel for use only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information. This language was similar to section 103 of H.R. 2975 that passed the House Judiciary Committee unanimously in October 2001.
Sec. 203(d) addresses information obtained through a criminal investigation. This section permits law enforcement officials to share foreign intelligence or counterintelligence (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)), or foreign intelligence information (as defined in subsection (19) of section 2510 of this title) obtained through a criminal investigation, for use only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information. This language was similar to section 154 of H.R. 2975 that passed the House Judiciary Committee unanimously in October 2001.
2. April 21, 2005, Hearing on--Crime, Terrorism, and the Age of Technology--(Section 209: Seizure of Voice-Mail Messages Pursuant to Warrants; Section 217: Interception of Computer Trespasser Communications; and Section 220: Nationwide Service of Search Warrants for Electronic Evidence)
The Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on section 209, 217, and 220 of the USA PATRIOT Act. Four witnesses--Laura Parsky, Deputy Assistant Attorney General of the Criminal Division, U.S. Department of Justice; Steven M. Martinez, Deputy Assistant Director of the Cyber Division, Federal Bureau of Investigation; James X. Dempsey, Executive Director of the Center for Democracy and Technology; and Peter Swire, Professor of Law, Mortiz College of Law, the Ohio State University--testified.
In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to update the 1968 Wiretap Act, recognizing that emerging technologies--such as electronic mail and voice mail--had rendered the 1968 statute outdated and inadequate. These 1986 modifications made the criminal code `technology neutral' to address future telecommunications technologies. `Technology neutral' means law enforcement investigative authorities remain the same regardless of the technology used by the criminal to facilitate illegal activity. Thus, law enforcement uses the same procedures to seek a court order for a wiretap of a computer or a phone used by the criminal.
As expected, cyber technology has advanced rapidly. As a result, people communicate quickly and effectively. Unfortunately, technology has also facilitated crime and terrorism.
Understanding these problems, the USA PATRIOT Act updated criminal law to address these new challenges. These updates also were designed to help law enforcement assess whether unlawful conduct is the result of criminal activity or terrorist activity and to respond appropriately. Some of these provisions are set to expire on December 31, 2005. The April 21, 2005 hearing covered three of those provisions: Sections 209, 217, and 220.
Sec. 209. Seizure of Voice-Mail Messages Pursuant to Warrants. Section 209 amended 18 U.S.C. Sec. 2703 (a) and (b) by adding language to cover stored wire communications--such as a voice mail. Section 209 updated the law to clarify that the criminal code remains technology-neutral. Section 209 clarified that stored voice mail is, in fact, a stored communication, and therefore is covered by 18 U.S.C. 2703. This language is similar to section 102 of H.R. 2975 that passed the House Judiciary Committee unanimously.
Sec. 217. Interception of Computer Trespasser Communications. The courts have long recognized that providers of communications services possess a `fundamental right to take reasonable measures to protect themselves and their properties against the illegal acts of a trespasser.' Bubis v. United States, 384 F.2d 643, 648 (9th Cir. 1967). Computer owners, however, often lack the expertise, equipment, or financial resources required to monitor attacks, and thus had no way to exercise their rights to protect themselves from unauthorized attackers--who could be terrorists or criminals engaged in attacking critical infrastructure, or the economy. Prior to the enactment of the USA PATRIOT Act, the law was unclear as to whether a victim of computer trespassing was allowed to request law enforcement assistance in monitoring unauthorized attacks as they occur.
These attacks come in many forms that cost companies and citizens millions of dollars and endanger public safety. For instance, denial-of-service attacks, where the objective of the attack is to disable a computer system, can shut down businesses or emergency responders or national security centers. This type of attack causes the target site's servers to run out of memory, and become incapable of responding to the queries of legitimate customers or users. The victims of these computer trespassers should be able to authorize law enforcement to intercept the trespassers' communications, similar to a store owner who authorizes the police to stop an intruder. To correct this problem, and help to protect national security, section 217 of the Act amended the wiretap statute to allow victims of computer attacks to authorize persons `acting under color of law' to monitor trespassers on their computer systems in a narrow class of cases.
Sec. 220. Nationwide Service of Search Warrants for Electronic Evidence. Prior to the enactment of the USA PATRIOT Act, Rule of the Federal Rules of Criminal Procedure of Criminal Procedure 41 required that the `warrant' be obtained `within the district' where the property to be searched is located. An investigator, for example, located in Boston who is investigating a suspected terrorist in that city, might have to seek a suspect's electronic e-mail from an Internet service provider (ISP) account located in California. The investigator would then need to coordinate with agents, prosecutors, and judges in the district in California where the ISP is located to obtain a warrant to search. Time delays caused by the need to coordinate with numerous parties could be devastating to an investigation, especially where additional criminal or terrorist acts are planned.
Section 220 of the Act amended 18 U.S.C. 2703 to authorize the court with jurisdiction over the investigation to issue the warrant directly, without requiring the intervention of its counterpart in the district where the ISP is located. Before and after the USA PATRIOT Act, 18 U.S.C. 2703(a) requires a search warrant to compel service providers to disclose unopened e-mails. The USA PATRIOT Act did not affect the requirement nor the probable cause standard for a search warrant, 14
[Footnote] but rather addresses investigative delays caused by the cross-jurisdictional nature of the Internet. This language is similar to section 108 of H.R. 2975 that passed the House Judiciary Committee unanimously.
[Footnote 14: The government must receive court authorization through a search warrant to search or seize property or a person, with limited exceptions. For a search warrant to be issued, the government must provide sworn affidavit to the magistrate that grounds exists or there is probable cause to believe ground exist--i.e., a crime is or is about to be committed.]
3. April 26, 2005 Hearing--Have Sections 204, 207, 214 and 225 of the USA PATRIOT Act, and Sections 6001 and 6002 of the Intelligence Reform and Terrorism Prevention Act of 2004, Improved FISA Investigations?
On Tuesday, April 26, 2005, the Subcommittee held a hearing to examine sections 204, 207, 214, and 225 of the USA PATRIOT Act, and sections 6001 and 6002 of the Intelligence Reform and Terrorism Prevention Act of 2004. Three witnesses--the Honorable Mary Beth Buchanan, United States Attorney for the Western District of Pennsylvania; James Baker, Office for Intelligence Policy and Review, U.S. Department of Justice; and Suzanne Spaulding, Managing Director, the Harbour Group, LLC--testified.
Sec. 204. Clarification of Intelligence Exceptions from Limitations on Interception and Disclosure of Wire, Oral, and Electronic Communications (18 U.S.C. 2511(2)(f)). This section amended section 2511(2)(f) of the Federal criminal code, which provided that Federal criminal law relating to law enforcement electronic surveillance (chapter 119, title 18) and access to stored communications and communications transactions records (chapter 121, title 18) did not affect the use of the Foreign Intelligence Surveillance Act (FISA) for intelligence purposes. Section 204 is a technical clarification amendment, which added that chapter 206 of title 18 is also covered by section 2511(2)(f). Thus, Federal criminal law relating to the use of pen registers and trap and trace devices under chapter 206 did not affect the use of FISA for intelligence purposes.
Sec. 207. Duration of FISA Surveillance of Non-United States Persons Who Are Agents of a Foreign Power. Prior to enactment of the USA PATRIOT Act, the government had 90 days to carry out surveillance under a FISA court order and 45 days to conduct a physical search under FISA, before seeking an extension. Because it often takes longer than these established periods to get on the premises or to conduct electronic surveillance and the delay in reapplying for an extension or new order posed a threat to national security, this provision added 30 days to the authorized period for surveillance from 90 days to 120 days. It also extended the period for physical searches from 45 days to 90 days.
Sec. 214. Pen Register and Trap and Trace Authority Under FISA. Section 214 of the Act amends 50 U.S.C. Sec. 1842 (Section 402 of the Foreign Intelligence Surveillance Act of 1978 (FISA)). Section 1842 is the pen register and trap and trace provision in the FISA that is modeled after Federal criminal law provisions (18 U.S.C. 3121 et. seq.). A pen register gathers out-going telephone or Internet-dialed numbers and a trap and trace gathers incoming numbers. This is the least intrusive method of electronic surveillance. Section 214 amends FISA (the pen register and trap and trace provisions) to mirror similar provisions that currently exist in criminal law (18 U.S.C. 3121 et. seq.). Prior to the enactment of the USA PATRIOT Act, the `pen register and trap and trace' provisions of FISA went beyond the criminal law requirement of certification of relevance, and required the Government to provide information that demonstrated that the communication instrument (e.g., a telephone line) has been or was about to be used to contact a `foreign power' or agent of a foreign power. This was a greater burden than exists in even a minor criminal investigation.
Section 214 clarifies that an application for pen register and trap and trace authority under FISA will be the same as the pen register and trap and trace authority defined in the criminal law. It requires the attorney for the government to certify to the court that the information sought is relevant to an ongoing FISA investigation. The statutory burden under FISA of having to show that the telephone line has been, or is about to be used, to contact a foreign power or terrorist is eliminated to conform to the existing and less burdensome criminal standards. The attorney for the government still must certify the information sought is relevant to an ongoing FISA investigation, which continues to be directed at an agent of a foreign power. This section codifies lawfulness of court authorized pen register and trap and trace device use for non-content communications over telecommunication technology other than by telephone. 15
[Footnote] Section 214 of the Act is substantively similar to section 155 of H.R. 2974, the House version that passed the Judiciary Committee unanimously. Section 214 includes protections for U.S. persons, which prohibit the investigation from being conducted based solely on activities protected by the First Amendment.
[Footnote 15: 50 U.S.C. 1842.]
Sec. 225. Immunity for Compliance with FISA Wiretap. While Federal criminal wiretap law immunizes those who assist law enforcement in the execution of a criminal wiretap interception order, 18 U.S.C. 2511(2)(a), this section provides immunity to anyone who complies with a FISA surveillance (wiretap) order.
Section 6001 of the Intelligence Reform and Terrorism Prevention Act. Individual Terrorists as Agents of Foreign Powers. This section amends the definition of `Agent of a Foreign Power' under section 50 U.S.C. Sec. 1801(b)(1) (the Foreign Intelligence Surveillance Act of 1978) by adding new subparagraph C. Section 1801(b)(1) defined `Agent of a foreign power' for any person other than a United States person, who--
Section 6002 of the Intelligence Reform and Terrorism Prevention Act. Additional Semiannual Reporting Requirements Under the Foreign Intelligence Surveillance Act. The section also includes additional reporting requirements to the House and Senate Judiciary Committees regarding the use of FISA.
4. April 28, 2005, Hearing--Have Sections 206 and 215 Improved FISA Investigations?
On Thursday, April 28, 2005, the Subcommittee held a hearing to examine sections 206 and 215 of the USA PATRIOT Act. Four witnesses--the Honorable Kenneth L. Wainstein, U.S. Attorney for the District of Columbia; James Baker, Office for Intelligence Policy and Review, U.S. Department of Justice; Robert Khuzami, former Assistant United States Attorney in the United States Attorney's Office for the Southern District of New York; and Greg Nojeim, the Associate Director and Chief Legislative Counsel of the American Civil Liberties Union's Washington National Office--testified.
Sec. 206. Roving surveillance authority under the Foreign Intelligence Surveillance Act of 1978. This section amends 105(c)(2)(B) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)) to update the authority to allow a court to authorize a `roving wiretap' `in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specified person,' that a common carrier, landlord, custodian, or other person not specified in the Court's order be required to furnish the applicant information and technical assistance necessary to accomplish electronic surveillance in a manner that will protect its secrecy and produce a minimum of interference with the services that such person is providing to the target of electronic surveillance.' This language was the same as the language in section 152 of H.R. 2975 that passed the House Judiciary Committee unanimously in the 107th Congress.
Federal judges have had the discretion for decades to grant law enforcement the authority to use `roving wiretaps' to investigate ordinary crimes, including drug offenses and racketeering, under Federal criminal law. When a judge issues a roving wiretap order, law enforcement can apply the wiretap to a particular suspect, rather than to a particular phone or communications device.
While international terrorists and spies are just as sophisticated as drug dealers and are trained to thwart surveillance by rapidly changing locations and communication devices such as cell phones, the law prior to the USA PATRIOT Act did not contain authority similar to the criminal law that allowed a Federal judge to issue a `roving wiretap' order in a national security or intelligence case. As a result, the Government had to return to the FISA court for an order that named the new carrier, landlord, etc., before effecting surveillance each time the terrorist or spy threw away his or her cell phone and used a different cell phone. Under section 206 of the USA PATRIOT Act, the FBI presents the newly discovered carrier, landlord, custodian, or other person with a generic order issued by the court, and the FBI can then effect FISA coverage as soon as it is technically feasible.
Sec. 215. Access to Records and Other Items Under the Foreign Intelligence Surveillance Act. Prior and subsequent to enactment of the USA PATRIOT Act, law enforcement could obtain records from all manner of businesses through grand jury-issued subpoenas. Targets of grand jury investigations do not have standing to challenge a grand jury subpoena directed at a third party. This access includes libraries and bookstores, for records relevant to criminal inquiries. For example, in the 1997 Gianni Versace murder case, a Florida grand jury subpoenaed records from public libraries in Miami Beach. In the 1990 Zodiac gunman investigation, a grand jury in Queens, New York, subpoenaed records from the library at Fifth Avenue and 42d Street in Manhattan. Investigators believed that the gunman was inspired by a Scottish occult poet, and wanted to learn who had checked out his books. Section 215 of the USA PATRIOT Act created similar authority, but with more stringent requirements. Section 215 provides the FISA court discretion to issue an order for business records related to `international terrorism and clandestine intelligence activities.' These judicial orders conceivably could be issued to bookstores or libraries, but section 215 does not single them out. Section 215 has a very narrow scope that can only be used: (1) `to obtain foreign intelligence information not concerning a United States person'; or (2) `to protect against international terrorism or clandestine intelligence activities.' 50 U.S.C. Sec. 1861(b)(2).
On April 28, 2005, the United States Attorney for the District of Columbia testified that some of the 9/11 hijackers used libraries in the United States. He stated:
On April 6, 2005 the Attorney General testified before the House Committee on the Judiciary and stated that the FISA court has granted the Department's request for a 215 order 35 times as of March 30, 2005. He went on to state that the Department has not sought a section 215 order to obtain library or book store records, medical records, or gun sale records. He also explained that the provision to date has been used only to obtain driver's license records, public accommodation records, apartment leasing records, credit card records, and subscriber information, such as names and addresses, for telephone numbers captured through court-authorized pen-register devices.
5. April 28, 2005, Hearing--Section 218 of the USA PATRIOT Act--If it Expires Will the `Wall' Return?
On Thursday, April 28, 2005, the Subcommittee held a hearing, which focused on section 218 of the USA PATRIOT Act. Some have argued that Section 218 contributed to lowering the `Wall,' and is set to expire on December 31, 2005. The `Wall' is a metaphorical term that described the legal and administrative constraints created to separate the operations of law enforcement and the intelligence community. Four witnesses--the Honorable Patrick Fitzgerald, U.S. Attorney for the Northern District of Illinois; David Kris, former Associate Deputy Attorney General for the Department of Justice; Kate Martin, Director of the Center for National Security Studies; and Peter Swire, Professor of Law at Ohio State University--testified.
Section 218 amended 50 U.S.C. Sec. 1804(a)(7)(B) and 1823(a)(7)(B) (the Foreign Intelligence Surveillance Act) to improve information sharing between law enforcement and the intelligence community. The Foreign Intelligence Surveillance Act limited surveillance and physical search orders to instances where authorities certified that `the purpose' of the order was for foreign intelligence gathering; subsequent case law raised a question of whether it was sufficient to meet `the purpose' requirement that foreign intelligence gathering was `the primary purpose' or whether `the purpose' requirement could be satisfied perhaps when a criminal investigation was not the primary purpose, 743 F.2d 59; 952 F.2d 565. Section 218 makes it clear that foreign intelligence gathering must be `a significant' reason for a FISA application, but need not be the primary purpose, as the courts had interpreted the law to mean. 16
[Footnote] Section 218 of the USA PATRIOT Act has helped to lower the `Wall' that prevented sharing of information between law enforcement and the intelligence community. This section is subject to the December 31, 2005 sunset.
[Footnote 16: In re: Sealed Case No. 02-001, FIS Ct. Rev., No. 02-001, 11/18/02, reversing 71 CrL 615.]
6. May 3, 2005, Oversight Hearing on Sections 201, 202, 213, and 223 of the USA PATRIOT Act and Their Effect on Law Enforcement Surveillance
On Tuesday, May 3, 2005, the Subcommittee on Crime, Terrorism, and Homeland Security for the Committee held a hearing on the USA PATRIOT Act. The hearing focused on the effect of sections 201, 202, 213, and 223 on law enforcement surveillance. Although section 213 does not sunset, the Committee reviewed this section of the USA PATRIOT Act to accommodate a request of the Minority. Section 213 covers delayed notice search warrants. Four witnesses--the Honorable Michael J. Sullivan, U.S. Attorney for the District of Massachusetts; Chuck Rosenberg, Chief of Staff to the Deputy Attorney General; Heather MacDonald, John M. Olin Fellow at the Manhattan Institute; and the Honorable Bob Barr, former Representative of Georgia's Seventh District--testified.
This hearing examined sections 201, 202, and 203 of the USA PATRIOT Act that relate to criminal wiretaps and section 213 that relates to when notice is provided for certain criminal search warrants. Sections 201, 202, and 223 expire on December 31, 2005. Section 213 does not sunset.
A. The Wiretap Provisions Set To Expire
1. Criminal Wiretap Authority Before the USA PATRIOT Act
`Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sec. 2510-2522 (1994 & Supp. II 1996), requires the government, unless otherwise permitted, to obtain an order of a court before conducting electronic surveillance. The government is permitted to seek such orders only in connection with the investigation of the criminal offenses enumerated in section 2516 of title 18.' 17
[Footnote]
[Footnote 17: October 17, 2000, Memorandum for the Counsel, Office of Intelligence Policy and Review, U.S. DOJ.]
For Federal investigations, section 2516 distinguishes between wire (i.e., telephone) and oral (i.e., face-to-face conversation) communications, and electronic communications (i.e., conversation using a computer). The USA PATRIOT Act did not change these distinctions.
2. Wiretap Authority as amended by the USA PATRIOT Act
The USA PATRIOT Act added to the wiretap predicates under sections 201 and 202, and added safeguards under section 223 designed to prohibit the unauthorized disclosure of information obtained under the Government's updated surveillance authority.
Sec. 201. Terrorism as a predicate act for authorization of wiretaps. This section added new `wiretap predicates' under section 2516 of title 18 of the Federal criminal code that relate to crimes of terrorism. Section 201 provides the courts discretion to grant a wiretap for the interception of wire, oral, or electronic communications in the investigation of: (1) possible crimes relating to chemical weapons under 18 U.S.C. Sec. 229 and (2) possible crimes relating to terrorism under 18 U.S.C. 2332, 2332a, 2332b, 2332d, 2339A, or 2339B. While some crimes involving terrorism were already wiretap predicates, others were not. The USA PATRIOT Act closed the gap with respect to the use of this key investigative tool that significantly enhances law enforcement ability to prevent a terrorist attack and prosecute crimes connected with it. Such authority already existed for a number of other less serious crimes, such as trafficking automobile parts. Prior to the enactment of the USA PATRIOT Act, law enforcement could already conduct wiretaps on electronic communications under section 2516(3) for these felonies. The USA PATRIOT Act changed the law to now permit wiretaps on wire and oral communications as well.
Sec. 202. Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse. This section adds a new `wiretap predicate' under section 2516 of title 18 of the Federal criminal code for serious computer hacking offenses, including cyberterrorism. Specifically, the wiretap predicate is for crimes under section 1030 of title 18 when the violation is a felony that relates to computer fraud and abuse. Prior to the USA PATRIOT Act, law enforcement could already conduct wiretaps on electronic communications under section 2516(3) for such felonies. The USA PATRIOT Act changed the law to now also permit wiretaps on wire and oral communications.
3. Wiretap Authority that Remained Unchanged by the USA PATRIOT Act
Sections 201 and 202 of the USA PATRIOT Act in no way change the strict limitations on how wiretaps may be used. Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968 18
[Footnote] that outlines what is and is not permissible with regard to wiretapping and electronic eavesdropping. 19
[Footnote] Title III restrictions go beyond Fourth Amendment constitutional protections and include a statutory suppression rule to exclude evidence that was collected in violation of Title III. 20
[Footnote] Except under limited circumstances, it is unlawful to intercept oral, wire, and electronic communications. 21
[Footnote] Accordingly, under the Act, Federal and state law enforcement may only use wiretaps under strict limitations. 22
[Footnote] Congress created these procedures to allow limited law enforcement access to private communications and communication records for investigations consistent with Fourth Amendment rights. Title 18 U.S.C. Sec. 2518 sets strict procedures for the use of a wiretap. Section 2518(1) requires the application to be made under written oath or affirmation to a judge of competent jurisdiction. Section 2518(1)(b) requires that the application set forth, among other things, `a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued. . . .' These facts should include, among other things, the `details as to the particular offense that has been, is being, or is about to be committed' and `the identity of the person, if known, committing the offense and whose communications are to be intercepted.' 23
[Footnote] Section 2518(3) also includes requirements that for the judge to issue a wiretap order the judge must believe (1) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of [title 18]; (2) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception; and (3) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. 24
[Footnote] To further protect privacy, law enforcement is required `to minimize the interception of communications not otherwise subject to interception [that is, noncriminal conversations] under this chapter, and must terminate upon attainment of the authorized objective.' 25
[Footnote]
[Footnote 18: Omnibus Crime Control and Safe Streets Act, 87 Stat. 197 (1968)(codified as amended at 18 U.S.C. Sec. 2510-2520 (1970).]
[Footnote 19: Charles Doyle & Gina Stevens, Congressional Research Service, Library of Congress, Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, at 6 (2001).]
[Footnote 20: 87 Stat. 197, 18 U.S.C. Sec. 2510-2520 (1970 ed.).]
[Footnote 21: 18 U.S.C. Sec. 2511.]
[Footnote 22: 18 U.S.C. Sec. 2518.]
[Footnote 23: 18 U.S.C. Sec. 2518(1)(b).]
[Footnote 24: 18 U.S.C. Sec. 2518 (emphasis added).]
[Footnote 25: 18 U.S.C. Sec. 2518(5).]
Sec. 223. Civil Liability for Certain Unauthorized Disclosures. This section is similar to section 161 of H.R. 2975 that passed the House Judiciary Committee unanimously. Section 223 includes safeguards designed to prevent the unauthorized disclosure of information obtained under the Government's updated surveillance authority, by amending the criminal code to provide for administrative discipline of Federal officers or employees, as well as by allowing for civil actions to be brought against the United States for damages by any person aggrieved by such disclosures.
B. Delayed Notice
1. Pre-existing Authority for Delayed Notice
Contrary to reports, the USA PATRIOT Act did not create delayed notice search warrants. Delayed notice search warrants have been used for decades prior to enactment of the USA PATRIOT Act. In 1979, the U.S. Supreme Court expressly held in Dalia v. United States that the Fourth Amendment does not require law enforcement to give immediate notice of the execution of a search warrant. 26
[Footnote] The Department of Justice states that three Federal Courts of Appeals had considered the constitutionality of delayed-notice search warrants since 1979 and upheld their constitutionality. 27
[Footnote]
[Footnote 26: See Dalia v. United States, 441 U.S. 238 (1979); see also Katz v. United States, 389 U.S. 347 (1967).]
[Footnote 27: April 4, 2005 U.S. Department of Justice letter to Senator Spector. p. 3 citing See United States v. Freitas, 800 F.2d 1451 (9th Cir. 1986); United States v. Villegas, 899 F.2d 1324 (2d Cir. 1990); United States v. Simons, 206 F.3d 392 (4th Cir. 2000).]
2. What Delayed Notice Means
A delayed notice search warrant simply means that a court has expressly authorized investigators to delay notifying a suspect that a search warrant has been executed (i.e., a court-ordered search has occurred). The search warrant is the same, regardless of when the suspect receives notice. Thus, before a search warrant is issued, whether notice is delayed or not, a Federal judge must find that there is probable cause to believe the property to be searched or seized constitutes evidence of a criminal offense.
3. Section 213 Creates a Uniform Nationwide Standard for a Court To Authorize Delayed Notice
Congress included section 213 in the USA PATRIOT Act to create a uniform nationwide standard for the issuance of these warrants. Under section 213 there are limited circumstances when a court may delay notice. These circumstances are the same predicate circumstances permitted in an application for delaying notice in a search warrant for stored communications under section 2705(a)(2) of title 18, which predated the USA PATRIOT Act. For a court to permit a delay in the notice of a search of a suspect's property, the investigator or prosecutor must show that there is reasonable cause to believe that if the suspect is notified at the same time as the search one of the following situations may occur:
4. Notification Required Within a Reasonable Period of Time
The subject of the search must be notified within a reasonable period of time as determined by the court. Congress retained discretion for the courts to review the facts and determine what a reasonable period time is to delay the notice, as that is necessarily dependent upon the facts of each case. According to the Department of Justice, the shortest period of time for which the Government has requested delayed-notice for a search warrant is 7 days and the longest is 180 days. This figure is from a survey of the 94 U.S. Attorneys' Offices for a period between April 1, 2003, and January 31, 2005.
In an April 4, 2005, letter to Senator Specter, the Department of Justice provided statistics on the number of search warrants granted and the number of those for which delayed notice was sought and granted:
7. Tuesday, May 5, 2005--Oversight Hearing on Section 212 of the USA PATRIOT Act That Allows Emergency Disclosure of Electronic Communications To Protect Life and Limb
On Thursday, May 5, 2005, the Subcommittee held a hearing on section 212 of the USA 1PATRIOT Act. Section 212 of the USA PATRIOT Act allows computer-service providers to disclose electronic communications in life-threatening emergencies to law enforcement and is scheduled to expire on December 31, 2005.
Four witnesses--the Honorable William Moschella, Assistant Attorney General, Office of Legislative Affairs, U.S. Department of Justice; Willie Hulon, Assistant Director of the Counterterrorism Division, Federal Bureau of Investigation; Professor Orrin Kerr, Professor of Law at the George Washington University Law School; and James X. Dempsey, Executive Director of the Center for Democracy and Technology as the witness for the Minority--testified.
This hearing examined section 212 of the USA PATRIOT Act that allows computer-service providers to disclose information under emergencies that threaten life or limb. To understand the effect of section 212, following is an explanation of the prohibitions for disclosing stored electronic communications that existed before and exist after enactment of the USA PATRIOT Act. The 1986 Electronic Communications Privacy Act (ECPA) to authorize Government access to e-mail and other electronic communications `in storage.' Section 2701(a) of that chapter makes it a Federal offense to unlawfully access stored communications. Subsection (c) of 18 U.S.C. Sec. 2701 provides exceptions to the prohibitions in (a). Those exceptions include conduct authorized by the person or entity providing a wire or electronic communications service; conduct authorized by a user of that service with respect to a communication of or intended for that user; and exceptions described in sections 2702, 2703, 2704, and 2518 of title 18.
Subsection 2702(a) restricts voluntary disclosure of customer communications or records, unless the disclosure falls under one of the specified exceptions in subsections 2702(b) or 2702(c). Subsection 2702(b) provides exceptions for disclosure of the contents of a communication. Subsection 2702(c) provides exceptions for the disclosure of customer records. Under section 2702(c) a provider covered by subsection 2702(a) may divulge a record or other information pertaining to a subscriber to or customer of such service that does not include the contents of communications covered by subsections 2701(a)(1) or (a)(2).
Section 2703 provides the standards for Government access to electronic communications in storage. Section 2703(a) requires a search warrant to compel service providers to disclose unopened e-mails.
Sec. 212. Emergency Disclosure of Electronic Communications to Protect Life and Limb. Section 212 of the USA PATRIOT Act amended sections 2702 and 2703 of title 18. Prior to enactment of the USA PATRIOT Act, there were two basic problems with the disclosure rules for stored electronic communications. First, the law contained no provision allowing electronic communications service providers to voluntarily disclose communications when necessary to protect life and limb. Thus, `for example, an Internet service provider (`ISP') independently learned that one of its customers was part of a conspiracy to commit an imminent terrorist attack, prompt disclosure of the account information to law enforcement could save lives. Since providing this information did not fall within one of the statutory exceptions, however, an ISP making such a disclosure could be sued civilly.' 28
[Footnote]
[Footnote 28: Field Guidance on New Authorities That Relate to Computer Crime and Electronic Evidence Enacted in the USA PATRIOT Act of 2001, Computer Crime and Intellectual Property Section (CCIPS), U.S. Dept. of Justice.]
Second, while the law allowed communications service providers to protect their rights and property by disclosing stored communications that contained content, the law did not allow them to disclose communications that contained `non-content' records for such protection. Allowing providers to disclose content, but not non-content communications, to protect their rights and property had, according to the Department of Justice, substantially hindered providers' ability to protect themselves from cyber-terrorists and criminals.
The USA PATRIOT Act addresses both issues. To resolve the first problem addressing life and limb emergencies, section 212 amends subsection 2702(b) to authorize communications service providers to voluntarily disclose the stored `content' and `non-content' communications of their customers or subscribers if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person requires disclosure of the information without delay. This language was later amended in 2002 under the `Cyber Security Enhancement Act,' which was introduced by Mr. Lamar Smith, then Chairman of the Subcommittee on Crime, Terrorism, and Homeland Security. 29
[Footnote]
[Footnote 29: The Cyber Security Enhancement Act was incorporated into the Homeland Security Act of 2002.]
The Cyber Security Enhancement Act contains a section that made a conforming amendment to the USA PATRIOT Act to allow communications services providers to disclose communications to government entities in emergency situations where the provider in good faith believes that there is a danger of death or physical injury. For customer communications, the USA PATRIOT Act creates an exception that allows emergency disclosures to `law enforcement,' when the provider reasonably believes there was immediate danger. For customer records, however, the USA PATRIOT Act creates a broader exception allowing disclosure of such records to `a governmental entity.' This section changes the emergency exception for disclosing customer communications to include other Government agencies, such as emergency response personnel, health officials, and the Department of Defense. Thus, the provider could contact, for instance, the Centers for Disease Control as well as law enforcement. It should be noted that section 212 does not impose an affirmative obligation to review customer communications in search of such imminent dangers.
As to the second problem regarding property rights of the communications services provider, section 212 amends the law to allow communications services providers to disclose non-content information (such as the subscriber's login records). `It accomplishes this change by two related sets of amendments. First, amendments to sections 2702 and 2703 of title 18 simplify the treatment of voluntary disclosures by providers by moving all such provisions to 2702. Thus, section 2702 now regulates all permissive disclosures (of content and non-content records alike), while section 2703 covers only compulsory disclosures by providers. Second, an amendment to new subsection 2702(c)(3) clarifies that service providers do have the statutory authority to disclose non-content records to protect their rights and property. All of these changes will sunset December 31, 2005.' 30
[Footnote]
[Footnote 30: Field Guidance on New Authorities That Relate to Computer Crime and Electronic Evidence Enacted in the USA PATRIOT Act of 2001, Computer Crime and Intellectual Property Section (CCIPS), U.S. Dept. of Justice.]
8. Tuesday, May 10, 2005, Oversight Hearing on the Prohibition of Material Support to Terrorists and Foreign Terrorist Organizations and on the DOJ Inspector General's Report on Civil Liberty Violations Under the USA PATRIOT Act
On Tuesday, May 10, 2005, the Subcommittee on Crime, Terrorism, and Homeland Security for the Committee on the Judiciary held a hearing on the USA PATRIOT Act. This hearing examined the prohibition of material support to terrorists and foreign terrorist organizations and the requirement of the Department of Justice Inspector General (IG) to report every six months on any violations of civil liberties. Four witnesses--the Honorable Glenn Fine, Inspector General of the Department of Justice; the Honorable Gregory G. Katsas, Deputy Assistant Attorney General, Civil Division of the Department of Justice; Mr. Barry Sabin, Chief of the Counterterrorism Section of the Criminal Division of the Department of Justice; and Ahilan Arulanantham, Staff Attorney for the American Civil Liberties Union of Southern California--testified.
The hearing focused on section 805(a)(2)(B) of the USA PATRIOT Act as amended by section 6603 of the Intelligence Reform and Terrorism Prevention Act of 2004, which covers Material Support, and section 1001 of the USA PATRIOT Act, which requires the IG to report to the Congress ever six months on whether the IG has found any civil liberty violations.
A. Section 1001 of the USA PATRIOT Act
Section 1001 requires the Inspector General of the Department of Justice to submit a semiannual report. This section does not sunset, but does help the Committee understand the existence and extent of civil liberty abuses by the Department of Justice. Specifically, section 1001 directs the IG to investigate claims of civil rights or civil liberties violations allegedly committed by the Department of Justice. Since enactment of the USA PATRIOT Act, the IG has issued six semi-annual reports. In the sixth (and most recent) report, which was issued in March 2005, the IG had yet to find any violations under the USA PATRIOT Act.
1. Background
Section 1001 of the USA PATRIOT Act is based upon a proposal that emerged during consideration of anti-terrorism legislation by the House Judiciary Committee. The Committee report explains, `In the wake of several significant incidents of security lapses and breach of regulations, there has arisen the need for independent oversight of the Federal Bureau of Investigation. Oversight of the Federal Bureau of Investigation is currently under the jurisdiction of the Department of Justice Office of Professional Responsibility. This section directs the Inspector General of the Department of Justice to appoint a Deputy Inspector General for Civil Rights, Civil Liberties. This section also directs the Deputy Inspector to review all information alleging abuses of civil rights, civil liberties, and racial and ethnic profiling by employees of the Department of Justice, which could include allegations of inappropriate profiling at the border,' H.Rept. 107-236, at 78. (2001).
2. The Department of Justice Office of Inspector General
The Office of the Inspector General (OIG) in the Department of Justice is an independent entity that reports to both the Attorney General and Congress. The OIG's mission is to investigate allegations of waste, fraud, and abuse in DOJ programs and personnel and to promote economy and efficiency in DOJ operations. The OIG has jurisdiction to review programs and personnel in all DOJ components. Since its creation in 1989, the OIG has had the authority to conduct audits and inspections in all DOJ components and investigations of employee misconduct in all components except the FBI and the Drug Enforcement Agency (DEA). On July 11, 2001, the Attorney General expanded the OIG's jurisdiction to include criminal and administrative investigations of FBI and DEA employees.
3. Section 1001
Section 1001 of the USA PATRIOT Act provides the following:
The Inspector General of the Department of Justice shall designate one official who shall:
(1) review information and receive complaints alleging abuses of civil rights and civil liberties by employees and officials of the Department of Justice;
(2) make public through the Internet, radio, television, and newspaper advertisements information on the responsibilities and functions of, and how to contact, the official; and
(3) submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate on a semi-annual basis a report on the implementation of this subsection and detailing any abuses described in paragraph (1), including a description of the use of funds appropriations used to carry out this subsection.
To undertake the responsibilities designated to the OIG by section 1001, the OIG established the Special Operations Branch in its Investigations Division to help manage the OIG's investigative responsibilities outlined in the USA PATRIOT Act. The Special Operations Branch receives civil rights and civil liberties complaints via mail, e-mail, telephone, and facsimile. Once a complaint is received, it is reviewed by the Investigative Specialist and ASAC responsible for USA PATRIOT Act complaints. After review, the complaint is entered into an OIG database and a decision is made concerning its disposition. The more serious civil rights and civil liberties allegations that relate to actions of a DOJ employee or contractor are assigned to an OIG Investigations Division field office for investigation. The OIG has approximately 120 series 1811 special agents who conduct investigations of criminal violations and administrative misconduct. Because of its limited resources, the OIG refers some complaints involving DOJ employees to internal affairs offices in DOJ components, such as the FBI and the Bureau of Prisons (BOP) for appropriate handling. Certain referrals require the component to report the results of their investigation to the OIG. In most cases, the OIG notifies the complainant of the referral. Complaints outside the OIG's jurisdiction that identify a specific issue for investigation are forwarded to the appropriate investigative entity.
In addition, the OIG has referred complainants to a variety of police department internal affairs offices. Since passage of the USA PATRIOT Act, the OIG also has been in close communication with the DOJ Civil Rights Division's National Origin Working Group (NOWG) to Combat the (Post-9/11 Discriminatory Backlash). The NOWG regularly forwards complaints alleging civil rights and civil liberties abuses to the OIG for review. Many of the complaints forwarded by the NOWG are the result of media database searches.
When an allegation received from any source involves a potential violation of Federal civil rights statutes by a DOJ employee, the complaint is discussed with the DOJ Civil Rights Division for prosecutorial review. In some cases, the Civil Rights Division accepts the case and requests additional investigation by either the OIG or FBI. In other cases, the Civil Rights Division declines prosecution. 31
[Footnote]
[Footnote 31: Report to Congress on Implementation of Section 1001 of the USA PATRIOT Act (as required by Section 1001(3) of Public Law 107-56) (Mar. 2005), Office of the Inspector General, U.S. Dept. of Justice, available at http://www.usdoj.gov/oig/special/0503/index.htm.]
4. Complaints Processed This Reporting Period
From June 22, 2004, through December 31, 2004, the period covered by the sixth report, the OIG processed 1,943 complaints that were sent primarily to the OIG's section 1001 e-mail or postal address. Of these complaints, 1,748 did not warrant further investigation or did not fall within the OIG's jurisdiction. Approximately three-quarters of the 1,748 complaints made allegations that did not warrant an investigation. For example, some of the complaints alleged that Government agents were broadcasting signals that interfere with a person's thoughts or dreams or that prison officials had laced the prison food with hallucinogenic drugs. The remaining one-quarter of the 1,748 complaints in this category involved allegations against agencies or entities outside of the DOJ, including other Federal agencies, local governments, or private businesses. The OIG referred those complaints to the appropriate entity or advised complainants of the entity with jurisdiction over their allegations.
Consequently, 195 complaints involved DOJ employees or components and made allegations that required further review. Of those complaints, 170 raised management issues rather than alleged `civil rights' or `civil liberties' abuses and were referred to DOJ components for handling. For example, inmates complained about the general conditions at Federal prisons, such as the poor quality of the food or the lack of hygiene products. Twelve of the 195 complaints did not provide sufficient detail to make a determination whether an abuse was alleged. The OIG requested further information but did not receive responses from any of these 12 complainants. Finally, the OIG requested that the BOP investigate one of the complaints and report to the OIG on the investigation's findings. That complaint involved an inmate who complained that he was sexually harassed by a correctional officer. BOP's investigation of the matter is ongoing.
Therefore, after analyzing these 195 complaints, the OIG identified 12 matters that the OIG believed warranted opening a section 1001 investigation or conducting a closer review to determine if section 1001-related abuse occurred. Of the 12 matters, the OIG retained one for investigation because the complainant made allegations of a potentially criminal nature. The OIG closed one because the allegations already had been addressed in a previous OIG investigation. The OIG referred the remaining ten matters, which appeared to raise largely administrative issues, to Department components for further investigation or review. For six of the ten matters, the OIG requested that the components report their findings to the IG.
None of the complaints the OIG processed during this reporting period alleged misconduct by DOJ employees relating to the use of a provision in the USA PATRIOT Act. 32
[Footnote] In addition, the IG has not substantiated claims of alleged misconduct resulting from the use of a provision of the USA PATRIOT Act in any prior report, although one such allegation is still under review. 33
[Footnote]
[Footnote 32: Id.]
[Footnote 33: An OIG investigation relating to Brandon Mayfield is still ongoing as of the date of this hearing.]
B. Prohibition on Material Support to Terrorists
1. The Antiterrorism and Effective Death Penalty Act of 1996
The USA PATRIOT Act did not create the prohibition on material support to terrorists and foreign terrorist organizations, but did amend that prohibition. It was the `Antiterrorism and Effective Death Penalty Act of 1996,' that created prohibitions to sever material support from international terrorists. The 1996 Act was in response to the Oklahoma City and first World Trade Center terrorist attacks. Subtitle A of Title III of the 1996 Act: (1) established the procedure under which a foreign organization may be designated as a terrorist organization; (2) proscribes providing such an organization with `material support;' and (3) established a system of civil penalties for banks and other financial institutions that fail to freeze and report the assets of such organizations. 34
[Footnote]
[Footnote 34: Antiterrorism and Effective Death Penalty Act of 1996: A Summary, Charles Doyle, Senior Specialist, American Law Division, Congressional Research Service, June 1996).]
Section 302 of the 1996 Act `established the procedure for designating as foreign terrorist organizations those foreign organizations that engage in terrorist activities that threaten the national defense, foreign relations, or economic interests of the United States or the security of U.S. nationals, 8 U.S.C. 1189. The designation by the Secretary of State lasts for up to two years with the possibility of a two-year renewal and may be withdrawn by the Secretary or by law. The designation is subject to judicial review on behalf of the designated organization if it is arbitrary, contrary to law, or in excess of authority. The Government may provide any supporting classified information to the court in secret. The designation may not be contested by a donor subsequently prosecuted for support nor by an alien excluded from the United States for association. Assets of a designated organization held by a financial institution may be frozen by order of the Secretary of the Treasury.' 35
[Footnote]
[Footnote 35: Id.]
Section 303 of the 1996 Act `outlaws providing support to a foreign terrorist organization, 18 U.S.C. 2339B. In addition to money and the instrumentalities of war, prohibited support extends to food, medical supplies, and any other physical asset except medicine itself and religious articles, 18 U.S.C. 2339A; 142 Cong.Rec. H3334 (daily ed. April 5, 1996). The fact that a particular contribution is made and used for humanitarian purposes is no defense since the gist of the offense is contributing to a tainted organization regardless of the purpose or use of the contribution. Violations are punishable by imprisonment for not more than 10 years and/or a fine of not more than $250,000. Financial institutions that fail to report or comply with a freeze order are subject to civil penalties of up to the greater of twice the amount involved or $50,000. The proscriptions apply both in the United States and to Americans and American institutions overseas.' 36
[Footnote]
[Footnote 36: Id.]
2. The 1998 Challenge to Material Support Prohibition
Led by the Humanitarian Law Project, six organizations and two individuals challenged the constitutionality of the law in 1998, contending that it violated the First Amendment.
They argued, among other things, that the law infringed on their free-association rights, granted too much discretion to the secretary of state and prohibited their First Amendment right to seek and donate funds.
A Federal district court rejected most of the First Amendment claims, but ruled the definition of the term `material support' was vague enough to prevent the government from enforcing the law.
On appeal, a three-judge panel of the 9th U.S. Circuit Court of Appeals agreed in Humanitarian Law Project v. Reno. Just as the lower court had, the appeals court cast aside most of the First Amendment arguments.
The court rejected the free-association claim, finding that the statute does not prohibit membership in a group or support for the political goals of a group. `What [the law] prohibits is the act of giving material support, and there is no constitutional right to facilitate terrorism by giving terrorists the weapons and explosives with which to carry out their grisly missions,' the court wrote in its March 3 opinion.
The plaintiffs contended that the law could be interpreted to prohibit the giving of material support to the so-called terrorist groups' nonviolent humanitarian and political activities.
However, the 9th Circuit determined that the First Amendment did not protect the right to give funds to terrorist groups. These `terrorist groups do not maintain open books,' the court wrote. `Therefore, when someone makes a donation to them, there is no way to tell how the donation is used.'
The appeals court distinguished between giving material support to a group and advocating the beliefs and ideas of a group. `Advocacy is far different from making donations of material support,' the court wrote.
The appeals court also dismissed the plaintiffs' argument that the statute had empowered the secretary of state with `unfettered discretion' to determine whether a group is a terrorist organization.
The 9th Circuit pointed out that the secretary of state can only designate a group as a terrorist group if he or she has `reasonable grounds to believe that an organization has engaged in terrorist acts.'
However, the appeals court agreed with the plaintiffs and the lower court that some of the law's language was too vague.
The law defined `material support' as:
Currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation and other physical assets, except medicine or religion.
The court focused on the terms `training' and `personnel,' finding that these terms `blur[red] the line between protected expression and unprotected conduct.'
`Someone who advocates the cause of * * * [a terrorist organization] * * * could be seen as supplying them with personnel,' the court wrote.
The appeals court also had trouble with the word `training.' `For example, a plaintiff who wishes to instruct members of a designated group on how to petition the United Nations to give aid to their group could plausibly decide that such protected expression falls within the scope of the term `training.' For these reasons, the court ruled that the lower court did not `abuse its discretion' in issuing a preliminary injunction. 37
[Footnote]
[Footnote 37: Federal appeals panel finds anti-terrorism law unconstitutionally vague, David Hudson, First Amendment Center research attorney, (April 8, 2000). [emphasis added].]
3. USA PATRIOT Act Amends the Material Support Provision
Section 805(a)(2)(B) of the USA PATRIOT Act added the phrase `expert advice or assistance' to the types of material support to terrorists that is banned by the criminal law. Title 18 U.S.C. Sec. 2339A prohibited providing material support or resources to terrorists prior to enactment of the USA PATRIOT Act. Prohibition on expert advice or assistance also applies to 18 U.S.C. 2339B's prohibition of material support to FTOs. The existing definition of `material support or resources' was not broad enough to encompass expert services and assistance--for example, advice provided by a person with expertise in aviation matters to facilitate an aircraft hijacking, or advice provided by an accountant to facilitate the concealment of funds used to support terrorist activities. This section accordingly amended 18 U.S.C. 2339A to include expert services and assistance, making the offense applicable to experts who provide services or assistance knowing or intending that the services or assistance is to be used in preparing for or carrying out terrorism crimes. This also applies to 18 U.S.C. 2339B.
4. Challenges to the USA PATRIOT Act Prohibition of Material Support to Terrorists
a. December 3, 2003 9th Circuit Decision
LOS ANGELES--Civil rights lawyers filed a free-speech challenge . . . to a section of the USA Patriot Act that makes it illegal to provide `expert advice and assistance' to groups with alleged links to terrorists.
The ban is unconstitutionally vague and should be struck down, the New York-based Center for Constitutional Right argued in a motion filed in Federal court.
The motion was included in the center's current lawsuit, Humanitarian Law Project v. Ashcroft, which challenges a 1996 law that makes it a crime to provide material support to any group designated a foreign terrorist organization. Federal courts have already struck down portions of that law that barred providing personnel or training to terrorist groups, saying the provisions were unconstitutionally vague.
The Patriot Act, passed after the Sept. 11, 2001, terrorist attacks, amended the definition of material support to include `expert advice and assistance.'
The plaintiffs say they want to provide support for lawful, nonviolent activities by two groups designated as foreign terrorist organizations: the Kurdistan Workers' Party in Turkey and the Liberation Tigers of Tamil Eelam in Sri Lanka.
One of the plaintiffs, Dr. Nagalingam Jeyalangim, would like to work as a doctor in his war-torn homeland of Sri Lanka. However, because some hospitals are controlled by rebel forces there, he fears he could be prosecuted for `providing material support' to a terrorist group, according to the filing.
* * * * * * * 38
[Footnote]
[Footnote 38: Patriot Act dealt blow by federal judge, The Associated Press, January 26, 2004.]
b. The 9th U.S. Circuit Court of Appeals Overturns Circuit's Ruling That the 1996 Terror Financing Law Was Unconstitutional
A Federal appeals court reinstated indictments against seven Los Angeles residents accused of raising money for a terror organization with links to ousted Iraqi ruler Saddam Hussein. In a victory for the Bush administration's war on terror, the 9th U.S. Circuit Court of Appeals yesterday reversed a Los Angeles Federal judge who declared the 1996 terror financing law unconstitutional.
The law makes it illegal to funnel money--`material support'--to organizations the State Department says are linked to terrorism, about 30 groups in all.
Before the Sept. 11, 2001, attacks, the government rarely used the terror law. Subsequently the administration has used the law to win dozens of terror convictions nationwide, from Lackawanna, N.Y., to Seattle to Portland, Ore.
* * * * * * *
The case stems from a 2001 indictment against the seven defendants for allegedly providing several hundred thousand dollars to the Mujahedin-e Khalq, which the appeals court said `participated in various terrorist activities against the Iranian regime' and `carried out terrorist activities with the support of Saddam Hussein's regime.'
U.S. District Judge Robert Takasugi had invalidated the law, saying it did not provide the groups a proper forum to contest their terror designations.
But a three-judge panel of the San Francisco-based Federal appeals court overruled that decision and went a step further, saying individuals accused of supporting the listed groups cannot challenge whether the groups should be listed.
The government, the court said, must prove the `fact that a particular organization was designated at the time the material support was given, not whether the government made a correct designation.'
The 9th Circuit decision mirrors a ruling this year by the 4th U.S. Circuit Court of Appeals in Richmond, Va., upholding the conviction of a man who funneled money to the militant Hezbollah organization while insisting he had a right to challenge that group's listing.
`The Justice Department is pleased that yet another court has upheld the constitutionality of the material-support statute, a key weapon in our arsenal of legal remedies in the war on terror,' spokesman John Nowacki said. `Stopping the flow of money and other resources to terrorists is critical to our success, and the department will continue to pursue those who provide material support for terrorist objectives.'
The seven Los Angeles defendants said it violated their First Amendment rights to be prohibited from contributing money to groups they say are not terror organizations. They said they should be afforded the right to prove that the group in question should not be on the State Department's list.
Writing for the majority, Judge Andrew J. Kleinfeld said the First Amendment did not protect unlimited speech, and even allowed limits on campaign contributions.
`It would be anomalous indeed if Congress could prohibit the contribution of money for television commercials saying why a candidate would be a good or bad choice for political office, yet could not prohibit contribution of money to a group designated a terrorist organization,' Kleinfeld wrote.
* * * * * * *
According to the indictment, the Los Angeles defendants solicited donations at the Los Angeles International Airport and wired money to a Mujahedin-e Khalq bank account in Turkey. The group had tried unsuccessfully to get removed from the terror list.
No court date has been set for the seven. 39
[Footnote]
[Footnote 39: 9th Circuit reinstates terror indictments, the Associated Press, December 21, 2004.]
5. Intelligence Reform and Terrorism Prevention Act of 2004
Section 6603 of the Intelligence Reform and Terrorism Prevention Act of 2004 adds a new crime of material support for terrorism for knowingly receiving military training from a foreign terrorist organization. The section requires that any person charged under this section must have knowledge that the organization is a terrorist organization. It also defines the term `military-type training.' Section 6603 also expands the crime of material support to terrorists to include any act of international or domestic terrorism.
Section 6603(c) specifies that any person charged under this section must have knowledge that the organization is a terrorist organization. It also more clearly defines the term `material support.' The Intelligence Reform and Terrorism Prevention Act of 2004 attempted to address the court cases finding the terms `training' and `personnel' under the prohibition unconstitutionally vague, 40
[Footnote] and the term `expert advice or assistance' in material support statute unconstitutionally vague. 41
[Footnote]
[Footnote 40: See Humanitarian Law Project v. United States Department of Justice, 352 F.3d 382 (9th Cir. 2003).]
[Footnote 41: Humanitarian Law Project v. Ashcroft, 2004 WL 112760 (C.D. Cal. Jan. 22, 2004).]
The Intelligence Reform and Terrorism Prevention Act provides more detailed definitions of the terms `training,' and `expert advice or assistance' under section 6603(b); and `personnel' under section 6603(f) by creating new section 3229B(a)(1)(h) of title 18 that limits the term `personnel.'
Section 6603(f) contains an exception that `no person may be prosecuted under this section in connection with the term `personnel,' `training,' or `expert advice or assistance' if the provision of that material support or resources to a foreign terrorist organization was approved by the Secretary of State with the concurrence of the Attorney General.'
Section 6603(g) also provides that section 6603 sunsets on December 31, 2006.
6. 9th Circuit Lifts 2002 Injunction Protecting Donors to Terrorist Organizations
A Federal appeals court yesterday lifted an injunction that had barred the government from prosecuting a Los Angeles group if it aids organizations labeled as supporting terrorism.
The decision by the 9th U.S. Circuit Court of Appeals came days after President Bush signed legislation overhauling U.S. intelligence gathering and terror-enforcement rules. The San Francisco-based court said yesterday's decision in Humanitarian Law Project v. Dept. of Justice was based partly on the Intelligence Reform and Terrorism Prevention Act of 2004, which Bush signed into law on Dec. 17.
The appeals court, however, did not comment on whether the Humanitarian Law Project could ever be prosecuted if it provided advice to the Kurdistan Workers' Party or the Tamil Tigers Eelam in Sri Lanka.
The 11-judge panel of the 9th Circuit sent the case back to the lower courts, where
the Humanitarian Law Project is expected to challenge the new provisions.
`The end goal is to get another injunction,' said David Cole, a Georgetown University School of Law scholar who won the 2002 injunction on behalf of the Humanitarian Law Project.
Cole said the group would abide by the court's order.
The State Department lists the Sri Lanka and Turkey groups as terror organizations. That makes it illegal for those in the United States to provide financial assistance under a 1996 law created in the aftermath of the attack on the Oklahoma City Federal building.
The Humanitarian Law Project was not seeking to give money. Rather, it wanted to donate personnel and training time to teach the groups about human rights and peacemaking, according to court documents.
The humanitarian group had provided human rights support to the Kurdistan party for years before the party was declared a terror organization by the United States. The humanitarian group challenged the 1996 law in Los Angeles Federal court a year later, Cole said.
The group sought the injunction because it feared its members might be prosecuted and imprisoned for up to 15 years.
Before the Sept. 11, 2001, attacks, the government rarely used the terror law. The administration subsequently has employed it to win dozens of terror convictions nationwide, from Lackawanna, N.Y., to Seattle and Portland, Ore.
In 2003, the 9th Circuit said the Humanitarian Law Project could donate human rights and peacemaking services because the law did not specifically outlaw such assistance. . . .
The legislation, which creates a national intelligence center and the position of national intelligence director, makes it illegal to assist the roughly 30 organizations the State Department says are linked to terrorism.
The new law virtually outlaws any form of assistance, financial or not.
* * * * * * *
Yesterday's decision comes a day after a different panel of the 9th Circuit reinstated the indictments against seven Los Angeles residents accused of raising money for a terror organization with links to ousted Iraqi ruler Saddam Hussein.
The group claimed they had a right to challenge whether the terror group they were funding--Mujahedin-e Khalq--should be on the terror list. The appeals court said the government must prove the `fact that a particular organization was designated at the time the material support was given, not whether the government made a correct designation.' 42
[Footnote]
[Footnote 42: 9th Circuit lifts injunction protecting donors, the Associated Press, December 22, 2004.]
9. May 26, 2005, Oversight Hearing on Material Witness Provisions of the Criminal Code and the Sections 505 and 804 of the USA PATRIOT Act
On Thursday, May 26, 2005, the Subcommittee on Crime, Terrorism, and Homeland Security for the Committee on the Judiciary held a hearing on material witness provisions of the criminal code and sections 505 (related to National Security Letters) and 804 (related to jurisdiction over crimes committed at U.S. facilities abroad) of the USA PATRIOT Act. The Subcommittee heard testimony from four witnesses--Chuck Rosenberg, Chief of Staff to the Deputy Attorney General of the Department of Justice; Matthew Berry, Counselor to the Assistant Attorney General of the Department of Justice; and two witnesses for the minority: Gregory Nojeim, Acting Director of the Washington Legislative Office of the American Civil Liberties Union; and Shayana Kadidal, Staff Attorney, Center for Constitutional Rights.
A. National Security Letters
1. What Is a National Security Letter?
A National Security Letter (NSL) is an administrative subpoena that can be used in international counterterrorism or foreign counterintelligence investigations. An administrative subpoena is an investigative tool that allows the FBI to request (compliance varies, see examples) document production or testimony without prior approval from a grand jury, court, or other judicial entity. Congress grants the administrative subpoena power of executive branch entities as well as the scope and exercise of these authorities.
2. Types of National Security Letters
A NSL can be used under the following circumstances and authorities:
3. When Can NSLs Be Issued?
In addition to the statutory authority set forth above, when an NSL can be issued or used is governed by the applicable Attorney General Guidelines for FBI National Security Investigations and Foreign Intelligence Collection. NSLs are used in international counterterrorism or foreign counterintelligence investigations. However, this authority is limited further: NSLs issued under 15 U.S.C. Sec. 1681v (credit reports) can only be issued in counterterrorism cases; credit reports cannot be obtained for a foreign counterintelligence investigation under this section.
NSLs cannot be used in criminal investigations unrelated to international terrorism or clandestine intelligence activities. Furthermore, both Executive Order 12333 and the FBI require that the FBI accomplish these investigations by the `least intrusive' means.
4. Recent Legislative Changes to NSL Authority
This is consistent with the Supreme Court's rulings on the issuance and purpose of administrative subpoenas. Previously the signature of a high-ranking official at FBI headquarters was required to issue an NSL and the process often took months. In many cases, counterintelligence and counterterrorism investigations suffered substantial delays while waiting for NSLs to be prepared, returned from headquarters, and served. The Act streamlines the process for obtaining NSL authority by allowing the Director to designate an individual at Headquarters, not lower than Deputy Assistant Director, or to designate a Special Agent in Charge in a Bureau field office, to authorize an NSL.
[Footnote]
[Footnote 43: Report to Congress on the Use of Administrative Subpoena Authority by Executive Branch Agencies and Entities, Pursuant to Pub. L. No. 106-544, Section 7, n. 8, p. 7.]
[Footnote]
[Footnote 44: Report to Congress on the Use of Administrative Subpoena Authority by Executive Branch Agencies and Entities, Pursuant to Pub. L. No. 106-544, Section 7, p. 8.]
5. Previously Proposed Changes to NSLs
6. Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004)
In September 2004, the United States District Court for the Southern District of New York struck down 18 U.S.C. Sec. 2709, the statute authorizing `national security letters,' or NSLs, for customer records from Internet, telephone, and other electronic service providers.
In Doe v. Ashcroft, the court found that the language of 18 U.S.C. 2709 and the practices surrounding its use offended (1) the Fourth Amendment because `in all but the exceptional case it has the effect of authorizing coercive searches effectively immune from any judicial process,' 334 F.Supp.2d at 506, and (2) the First Amendment because its sweeping, permanent gag order provision applies `in every case, to every person, in perpetuity, with no vehicle for the ban to ever be lifted from the recipient or other persons affected under any circumstances, either by the FBI itself, or pursuant to judicial process,' id. at 476. The court concluded that the national security letters before it differed from administrative subpoenas by want of judicial review either before or after `the seizure':
While the Fourth Amendment reasonableness standard is permissive in the context of the administrative subpoenas, the constitutionality of the administrative subpoena is predicated on the availability of a neutral tribunal to determine, after a subpoena issued, whether the subpoena actually complies with the Fourth Amendment's demands. In contrast to an actual physical search, which must be justified by the warrant and probable cause requirements occurring before the search, an administrative subpoena `is regulated by and its justification derives from, [judicial] process' available after the subpoena is issued.
Accordingly, the Supreme Court has held that an administrative subpoena `may not be made and enforced' by the administrative agency; rather, the subpoenaed party must be able to `obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply.' In sum, longstanding Supreme Court doctrine makes clear that an administrative subpoena statute is consistent with the Fourth Amendment when it is subject to `judicial supervision' and `surrounded by every safeguard of judicial restraint.' 334 F.Supp.2d at 495, quoting inter alia, Oklahoma Press Pub. Co. v. Walling, 327 U.S. at 217; See v. City of Seattle, 387 U.S. 541, 544-45 (1967).
By way of emphasizing the troubling sweep of the nondisclosure ban found in 18 U.S.C. 2709(c), the court pointed to legislative proposals in the 108th Congress that might serve as one of several possible models for a more narrowly tailored means of protecting the legitimate governmental interests upon which section 2709 rests. 45
[Footnote]
[Footnote 45: Doyle, Charles, Congressional Research Service RL32880, Administrative Subpoenas and National Security Letters in Criminal and Foreign Intelligence Investigations: Background and Proposed Adjustments Administrative Subpoenas and National Security Letters in Criminal and Foreign Intelligence Investigations: Background and Proposed Adjustments. P. 24-25 (April 15, 2005).]
7. Doe v. Ashcroft and H.R. 3179, `The Anti-Terrorism Intelligence Tools Improvement Act of 2003'
In the 108th Congress, Chairman Sensenbrenner introduced H.R. 3179, in part to address the fact that some NSL had explicit enforcement mechanisms and others did not. The Court in Doe v. Ashcroft concluded that there were three problems with NSLs: 1) the statute did not clarify whether consulting an attorney would violate the prohibition on disclosure under the law, 2) the statute contained no explicit provision for the Government to seek judicial enforcement, and 3) there was no provision imposing penalties against a person who fails to comply with an NSL. The Court found that `H.R. 3179 would have addressed two of the issues listed above by explicitly providing for judicial enforcement of NSLs and by imposing penalties of up to five years' imprisonment for persons who unlawfully disclose that they have received an NSL.' 46
[Footnote]
[Footnote 46: Doe v. Ashcroft, 334 F. Supp. 2d 471, 493 (S.D.N.Y. 2004).]
B. Extraterritorial Jurisdiction
1. What Is Extraterritorial Jurisdiction
Extraterritorial jurisdiction occurs when Federal law applies overseas to U.S. citizens and U.S. foreign nationals when there is some nexus to the United States, according to the Congressional Research Service.
The Constitution does not forbid either Congressional or state enactment of laws which apply outside the United States. Nor does it prohibit either the Federal government or the states from enforcing American law abroad. In fact, several passages suggest that the Constitution contemplates the application of American law beyond the geographical confines of the United States. 47
[Footnote] It speaks of `felonies on the high seas,' `offences against the law of nations,' `commerce with foreign nations,' and of the impact of treaties.
[Footnote 47: Doyle, Charles, Congressional Research Service RS21306, Terrorism and Extraterritorial Jurisdiction in Criminal Cases: Recent Developments in Brief. P. 1 (Sept 6, 2002).]
The Constitution provides the power to enact criminal laws with extraterritorial application. It vests Congress with, among other things, the power `to regulate commerce with foreign nations * * * to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations * * *' and gives Congress legislative jurisdiction over places acquired `for the erection of forts, magazines, arsenals, dock- years, and other needful buildings.'
The Constitution also limits the manner in which this authority may be exercised. The due process clause of the Fifth Amendment, for instance, bars the extraterritorial application of Federal criminal laws in the absence of a connection between the crime, the defendant, and the United States. Prosecution requires personal jurisdiction over the defendant and subject matter jurisdiction over the crime. * * *. 48
[Footnote]
[Footnote 48: Doyle, Charles, Congressional Research Service RS21306, Terrorism and Extraterritorial Jurisdiction in Criminal Cases: Recent Developments in Brief. P. 1 (Sept 6, 2002).]
2. The Military Extraterritorial Jurisdiction Act of 2000
The Military Extraterritorial Jurisdiction Act covers felonies, committed anywhere overseas, by members of the armed forces or those accompanying or employed by the Department of Defense, as if they were committed within the territorial jurisdiction of the United States, 18 U.S.C. Sec. 3261. 49
[Footnote] While the Military Extraterritorial Jurisdiction Act extended Federal criminal jurisdiction to Defense Department employees and contractors outside the U.S., it does not cover contractors working for other agencies. Section 804 of the USA PATRIOT Act closed this loophole.
[Footnote 49: Id. At 3.]
3. Section 804 of the USA PATRIOT Act
According to the Congressional Research Service:
[The USA] PATRIOT Act addressed a split in the circuit courts of appeals over whether the Federal laws that outlaw such crimes as murder, rape, and robbery when committed within Federal enclaves in this country also apply on American governmental installations abroad. With the enactment of section 804, they do; at least when either the victim or the offender is a U.S. national. Prior to the PATRIOT Act, the dispute centered on the construction of 18 U.S.C. 7(3) which defines the special territorial jurisdiction of the United States. The Fourth and Ninth Circuits held that the definition in subsection 7(3) includes areas in other countries over which the host nation has afforded the United States privileges akin to sovereignty. The Second Circuit held that the subsection is intended to encompass only those areas over which Congress may exercise legislative jurisdiction of the kind ordinarily vested in the Several States.
Congress resolved the dispute, or at least greatly mitigated its consequences, when it enacted section 804 of the USA PATRIOT Act and the Military Extraterritorial Jurisdiction Act of 2000. The Military Extraterritorial Jurisdiction Act treats felonies, committed anywhere overseas by members of the armed forces or those accompanying or employed by them, as if they were committed within the territorial jurisdiction of the United States, 18 U.S.C. 3261. Section 804 of the USA PATRIOT Act creates a new territorial subsection in 18 U.S.C. 7: the special territorial jurisdiction of the United States includes the overseas business premises of Federal governmental entities and the residences of the members of their staffs, but only for crimes committed by or against Americans (other than those who come within the military extension of 18 U.S.C. 3261). The split in the circuits remains of consequence for crimes committed in Federal overseas facilities by foreign nationals who are not associated with the U.S. armed forces. In the Fourth and Ninth Circuits, such crimes may come within the territorial jurisdiction of the United States. In the Second Circuit, they do not. 50
[Footnote]
[Footnote 50: Id.]
C. Material Witness Law
Title 18 U.S.C. Sec. 3144 provides that if `it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 2142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.' The material witness statute is available to both the Government and the defense to assure testimony in criminal trials in the interest of justice.
The statute specifically limits this authority: no material witness may be detained if: (1) the witness' testimony can be adequately secured by deposition; and (2) further detention is not necessary to prevent a failure of justice. However, release may be delayed for a reasonable amount of time until the material witness' deposition can be taken.
C. Oversight in the 107th and 108th Congress of the USA PATRIOT Act
Due to the concerns that these new authorities could lead to civil liberties violations, Congress included reporting requirements and a sunset provision. Authorities under sections 201, 202, 203(b) and (d), 204, 206, 207, 209, 212, 214, 215, 217, 218, 220, 223 and 225 of the USA PATRIOT Act (Pub. L. No. 107-296) expire this year on December 31, 2005.
1. IG Report Under Section 1001 of the USA PATRIOT Act
The USA PATRIOT Act contains reporting requirements to facilitate ongoing Congressional oversight of the Department of Justice and the implementation of the Act. Section 1001 of the USA PATRIOT Act requires the Inspector General of the Department of Justice to report to the House and Senate Committees on the Judiciary on a semi-annual basis on any complaints of civil liberties abuses by the Department of Justice. In accordance with Section 1001, the Department of Justice has sent six reports entitled, `Report to Congress on the implementation of Section 1001 of the USA PATRIOT Act.'
2. No Evidence of Civil Liberty Violations Has Been Presented to Congress
Democrat Senator Dianne Feinstein acknowledged the many misconceptions surrounding the USA PATRIOT Act at the Senate Judiciary Committee's hearing on October 21, 2003, regarding Terrorism Prevention Laws. 51
[Footnote] Senator Feinstein noted that despite the fact that 34 states have passed resolutions or ordinances against the USA PATRIOT Act mostly due to perceived civil rights concerns-she has never had a single abuse of the USA PATRIOT Act reported to her. She stated, `There is a lot of public uncertainty about this bill.' She went on to note: `I find it interesting that, of the 21,000 comments I've received * * * to have half really against a bill that has never come to the Hill is interesting. And to have a substantial number relate to the National Entry-Exit Registration System, which is not part of the bill, is also interesting. Now what I had deduced from this is that there are substantial uncertainty--perhaps some ignorance--about what this bill actually does do' 52
[Footnote] This is interesting but understandable, given that every legislative attempt to improve national security is labeled `PATRIOT II' by groups opposed to the USA PATRIOT Act.
[Footnote 51: U.S. Senate Judiciary Committee Hearing `Terrorism Prevention Laws' October 21, 2003, p 15.]
[Footnote 52: Id.]
Senator Feinstein, moreover, has continued to request information from the Department of Justice on whether violations have occurred. An April 26, 2005 letter responds:
In a letter dated April 4, 2005, the American Civil Liberties Union (`ACLU') responded to your March 25 request for information regarding alleged `abuses' of the USA PATRIOT Act. At your request, the Department of Justice has reviewed the ACLU's allegations. It appears that each matter cited by the ACLU either did not, in fact, involve the USA PATRIOT Act or was an entirely appropriate use of the Act. Thus, the ACLU is mistaken in its assertion in the letter that `the government has abused and misused the Patriot Act repeatedly' and its press release, entitled `Patriot Act Abuses and Misuses Abound,' that accompanied the letter. * * *' 53
[Footnote]
[Footnote 53: April 26, 2005, Letter to the Honorable Diane Feinstein from William E. Moschella.]
3. Continued Oversight Through Letters to the Department of Justice
Furthermore, both the House and the Senate Judiciary Committees have conducted continuous oversight. The House Judiciary Committee sent the Attorney General a letter on June 13, 2002, with 50 detailed questions on the implementation of the USA PATRIOT Act. 54
[Footnote] The questions were a result of extensive consultation between the Majority and Minority Committee counsel. Assistant Attorney General, Daniel Bryant, responded to Chairman Sensenbrenner and Ranking Member Mr. Conyers on July 26, 2002, providing lengthy responses to 28 out of the 50 questions submitted. 55
[Footnote] On August 26, 2002, Mr. Bryant sent the responses to the remaining questions, 56
[Footnote] after sending responses to six of the questions to the House Permanent Select Committee on Intelligence.
[Footnote 54: June 13, 2002, Letter to the Attorney General from F. James Sensenbrenner, Jr., and John Conyers, Jr., requesting responses to 50 questions regarding the implementation of the PATRIOT Act.]
[Footnote 55: July 26, 2002, Responses from Daniel J. Bryant to F. James Sensenbrenner, Jr., and John Conyers, Jr., to 28 of the 50 questions submitted to the Department of Justice on June 13, 2002.]
[Footnote 56: August 26, 2002, Responses from Daniel J. Bryant to F. James Sensenbrenner, Jr., and John Conyers, Jr., to the remaining questions (six of the responses being sent to the House Permanent Select Committee on Intelligence) submitted to the Department of Justice on June 13, 2002.]
Then, on September 20, 2002, Mr. Bryant sent the Minority additional information regarding the Department of Justice's responses to these questions. 57
[Footnote] On April 1, 2003,
[Footnote 57: September 20, 2002, Additional information from Daniel J. Bryant to F. James Sensenbrenner, Jr., and John Conyers, Jr., regarding the Department's responses to questions submitted to the Department of Justice on June 13, 2002.]
Then, on September 20, 2002, Mr. Bryant sent the Minority additional information regarding the Department of Justice's responses to these questions. 57
[Footnote] On April 1, 2003, Chairman Sensenbrenner and Ranking Member Conyers sent a second letter to the Department of Justice with additional questions regarding the use of pre-existing authorities and the new authorities conferred by the USA PATRIOT Act. 58
[Footnote] Once again, the questions were the product of bipartisan coordination by Committee counsel. Acting Assistant Attorney General, Jamie E. Brown, responded with a May 13, 2003 letter that answered the questions she deemed relevant to the Department of Justice and forwarded the remaining questions to the appropriate officials at the Department of Homeland Security. 59
[Footnote] On June 13, 2003, the Assistant Secretary for Legislative Affairs at the Department of Homeland Security, Pamela J. Turner, sent responses to the forwarded questions. 60
[Footnote] These items are posted on the Committee's website and were the subject of extensive press coverage. 61
[Footnote]
[Footnote 57: September 20, 2002, Additional information from Daniel Bryant to F. James Sensenbrenner, Jr., and John Conyers, Jr., regarding the Department's responses to questions submitted to the Department of Justice on June 13, 2002.]
[Footnote 58: April 1, 2003, Letter to the Attorney General from F. James Sensenbrenner, Jr., and John Conyers, Jr., regarding the use of preexisting authorities and the new authorities conferred by the PATRIOT Act.]
[Footnote 59: May 13, 2003, Response from Jamie E. Brown to F. James Sensenbrenner, Jr., and John Conyers, Jr., to letter sent to the Department of Justice on April 1, 2003.]
[Footnote 60: June 13, 2003, Responses from Pamela J. Turner at the Department of Homeland Security to F. James Sensenbrenner, Jr., and John Conyers, Jr., to questions forwarded from the Department of Justice on June 13, 2003.]
[Footnote 61: May 20, 2003, Press Release: `Sensenbrenner/Conyers Release Justice Department Oversight Answers Regarding USA PATRIOT Act and War on Terrorism'; May 20, 2003, Curt Anderson, `Fewer than 50 Held Without Charges,' Associated Press Online; May 20, 2003, Curt Anderson, `Government Has Held Fewer Than 50 People as Material Witnesses in War on Terror,' Associated Press Worldstream; May 20, 2003, `Sensenbrenner, Conyers Release Justice Department Oversight Answers Regarding USA PATRIOT Act, War on Terrorism,' U.S. Newswire; May 21, 2003, Kevin Johnson and Toni Locy, `Justice Department Reveals Tactics Used in Fight Against Terror,' USA Today; July 22, 2003, Press Release: `Statement Regarding Inspector General's Report on Civil Rights/Liberties Complaints'; July 22, 2003, Audrey Hudson, `US Probes PATRIOT Act Complaints, Substantiates Few,' The Washington Times; September 18, 2003, Press Release: `Sensenbrenner Statement on Justice Department's Disclosure of Number of Times Library and Business Records have been Sought Under Section 215 of the USA PATRIOT Act'; September 19, 2003, Audrey Hudson, `Librarians Dispute Justice's Claim on Use of PATRIOT Act,' The Washington Times; September 24, 2002, `Waiting for All the Answers,' The Milwaukee Journal Sentinel Copley News Service.]
On November 20, 2003, Chairman Sensenbrenner and Congressman Hostettler, Chairman of the Subcommittee on Immigration, Border Security, and Claims, sent a letter to the Comptroller General of the Government Accountability Office (GAO) requesting a GAO study of the implementation of the USA PATRIOT Act anti-money laundering provisions. This report was released on June 6, 2005.
On May 19, 2005, Chairman Sensenbrenner sent a letter to Attorney General Gonzales with questions for the record from Members of the Committee. 62
[Footnote] Assistant Attorney General Moschella provided responses to 39 of the questions on July 12, 2005. 63
[Footnote]
[Footnote 62: May 19, 2005, Letter to the Attorney General from F. James Sensenbrenner, Jr., requesting responses to 44 follow-up questions posed during hearings on implementation of the USA PATRIOT Act.]
[Footnote 63: July 12, 2005, Letter to F. James Sensenbrenner, Jr., from William E. Moschella responding to 39 follow-up question on implementation of the USA PATRIOT Act.]
On May 19, 2005, Chairman Sensenbrenner also sent a letter to Attorney General Gonzales with ten questions on specific provisions of the USA PATRIOT Act. 64
[Footnote] On June 10, 2005 the Department responded in a classified letter. 65
[Footnote]
[Footnote 64: May 19, 2005, Letter to the Attorney General from F. James Sensenbrenner, Jr., requesting responses to 10 questions on provisions of the USA PATRIOT Act.]
[Footnote 65: June 10, 2005, Letter to F. James Sensenbrenner, Jr., from William E. Moschella responding to 10 questions on provisions of the USA PATRIOT Act.]
On July 1, 2005, Chairman Sensenbrenner sent a letter to Attorney General Gonzales requesting additional information on behalf of Minority Members of the Committee on the use of the USA PATRIOT Act. 66
[Footnote] On July 12, 2005 Assistant Attorney General Moschella responded. 67
[Footnote]
[Footnote 66: July 1, 2005, Letter to the Attorney General from F. James Sensenbrenner, Jr., requesting responses to 18 follow-up questions posed during hearings on implementation of the USA PATRIOT Act.]
[Footnote 67: July 12, 2005, Letter to F. James Sensenbrenner, Jr., from William E. Moschella responding to 18 follow-up questions posed during hearings on implementation of the USA PATRIOT Act.]
4. Continued Oversight Through Hearings
The House Judiciary Committee also has held hearings as part of its ongoing oversight efforts. On May 20, 2003, the Committee's Subcommittee on the Constitution held an oversight hearing entitled, `Anti-Terrorism Investigations and the Fourth Amendment After September 11th: Where and When Can Government Go to Prevent Terrorist Attacks.' Then, on June 5, 2003, the Attorney General testified before the full Committee on the Judiciary at an oversight hearing on the United States Department of Justice. Both the hearing on May 20 and the hearing on June 5 discussed oversight aspects of the USA PATRIOT Act.
The Senate Judiciary Committee has been active in its oversight responsibilities regarding the implementation of the USA PATRIOT Act as well. The Senate Judiciary Committee held hearings on December 6, 2001; April 17, 2002; June 6, 2002; July 25, 2002; September 10, 2002; and July 23, 2003; September 22, 2004; April 5, 2005; and May 10, 2005--all in regard to the USA PATRIOT Act or oversight efforts at the Department of Justice. Counsel to the Subcommittee on Crime, Terrorism, and Homeland Security have monitored these activities and are in regular contact with their counterparts in the other body.
5. Continued Oversight Through Briefings
Further, the Subcommittee on Crime, Terrorism, and Homeland Security of this Committee requested that officials from the Department of Justice appear and answer questions regarding the implementation of the USA PATRIOT Act. In response to our requests, the Department of Justice gave briefings to Members, counsel, and staff. During a briefing held on August 7, 2003, Department officials covered the long-standing authority for law enforcement to conduct delayed searches and collect business records, as well as the effect of the USA PATRIOT Act on those authorities. During a second briefing, held on February 3, 2004, the Department of Justice discussed its views of S. 1709, the `Security and Freedom Ensured (SAFE) Act of 2003,' and H.R. 3352, the House companion bill, as both bills proposed changes to the USA PATRIOT Act.
The Department of Justice has also provided two classified briefings on the use of the Foreign Intelligence Surveillance Act (FISA) under the USA PATRIOT Act for Members of the Judiciary Committee. On June 10, 2003, and October 29, 2003, the Justice Department provided these briefings. The Department also provided a law enforcement sensitive briefing on FISA to the House Judiciary Committee Members and staff on March 22, 2005 and a classified briefing on June 7, 2005.
The full Committee on the Judiciary held 3 days of hearings on the reauthorization of the USA PATRIOT Act on April 6, June 8, and June 10 of 2005; and the Committee's Subcommittee on Crime, Terrorism, and Homeland Security held a total of 9 hearings on April 19, April 21, April 26, April 28, May 3, May 5, May 10, and May 26 of 2005. On April 28 the Subcommittee on Crime, Terrorism, and Homeland Security held two hearings.
On July 13, 2005, the Committee met in open session and ordered favorably reported the bill H.R. 3199 with amendment by a recorded vote of 23 yeas to 14 nays and 2 passes, a quorum being present.
In compliance with clause 3(b) of rule XIII of the Rules of the House of Representatives, the Committee notes that the following roll call votes occurred during the Committee's consideration of H.R. 3199.
1. An amendment was offered by Mr. Lungren to section 2702 of title 18. Section 2702 of title 18 was amended by section 212 of the USA PATRIOT Act in 2001 to allow Internet service providers to voluntarily disclose the contents of electronic communications and subscriber information in emergencies involving immediate danger of death or serious physical injury. The amendment would require the Attorney General to report annually to the Judiciary Committees of the House and Senate and set forth the number of accounts subject to a voluntary disclosure under section 212. The report would also have to summarize the basis for disclosure in certain circumstances. The amendment passed by voice vote.
2. An amendment was offered by Mr. Nadler to amend section 501 of the Foreign Intelligence Surveillance Act of 1978 to change the current standard necessary for obtaining a section 215 order to request business records held by third parties to require a showing of `specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.' The amendment also would allow the recipient to challenge the order and to petition the court to set aside the non-disclosure requirement. The
amendment failed by a vote of 12 yeas and 23 nays.
ROLLCALL NO. 1
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins
Mr. Cannon X
Mr. Bachus
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher X
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee
Ms. Waters X
Mr. Meehan
Mr. Delahunt X
Mr. Wexler
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 12 23
----------------------------------------------
3. An amendment was offered by Mr. Flake to amend section 8(c) of H.R. 3199 to clarify further that a person can disclose to an attorney the receipt of a 215 order not only to respond, but to challenge, the order. The amendment passed by voice vote.
4. An amendment was offered by Ms. Waters to amend section 505 of the USA PATRIOT Act to prohibit the issuance of national security letters for records from health insurance companies. The amendment failed by a recorded vote of 14 yeas and 23 nays.
ROLLCALL NO. 2
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher X
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee
Ms. Waters X
Mr. Meehan
Mr. Delahunt X
Mr. Wexler X
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 14 23
----------------------------------------------
5. An amendment was offered by Mr. Issa to amend section 105(c) of the Foreign Intelligence Surveillance Act of 1978. This section was modified by section 206 of the USA PATRIOT Act to authorize roving wiretaps in FISA investigations. The amendment will (1) require applications for roving wiretap surveillance authority to include specific facts upon which the court can make its determination and (2) if the authority is granted, require the applicant to notify the court within 10 days of the initiation of surveillance on a new facility or place and to notify the court of the facts and circumstances relied upon by the applicant to justify the belief that the target would be using each new facility. The amendment passed by a recorded vote of 34 yeas and 0 nays.
ROLLCALL NO. 3
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde
Mr. Coble X
Mr. Smith (Texas)
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee
Ms. Waters X
Mr. Meehan
Mr. Delahunt X
Mr. Wexler X
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 34 0
----------------------------------------------
6. An amendment was offered by Mr. Scott to second the amendment offered by Mr. Lungren for a 10-year sunset for sections 206 and 215 of the USA PATRIOT Act. The amendment would have reduced the 10-year to a 4-year sunset. The amendment failed by a recorded vote of 15 yeas and 21 nays.
ROLLCALL NO. 4
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee
Ms. Waters X
Mr. Meehan X
Mr. Delahunt X
Mr. Wexler X
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 15 21
----------------------------------------------
7. An amendment was offered by Mr. Nadler to second the amendment offered by Mr. Lungren for a 10-year sunset for sections 206 and 215 of the USA PATRIOT Act. The amendment would have reduced the 10-year to a 6-year sunset. The amendment failed by a recorded vote of 9 yeas and 18 nays.
ROLLCALL NO. 5
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller
Mr. Issa X
Mr. Flake
Mr. Pence
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks
Mr. Gohmert X
Mr. Conyers X
Mr. Berman
Mr. Boucher X
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren
Ms. Jackson Lee
Ms. Waters
Mr. Meehan X
Mr. Delahunt X
Mr. Wexler
Mr. Weiner
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen
Ms. Wasserman Schultz
Mr. Sensenbrenner, Chairman X
Total 9 18
----------------------------------------------
8. An amendment was offered by Mr. Lungren that would provide a sunset for sections 206 and 215 of the USA PATRIOT Act. Under the amendment these provisions would expire in 10 years. This amendment passed by a recorded vote of 26 yeas and 2 nays.
ROLLCALL NO. 6
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus
Mr. Inglis X
Mr. Hostettler
Mr. Green X
Mr. Keller
Mr. Issa X
Mr. Flake X
Mr. Pence
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks
Mr. Gohmert X
Mr. Conyers X
Mr. Berman
Mr. Boucher X
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren
Ms. Jackson Lee
Ms. Waters
Mr. Meehan X
Mr. Delahunt X
Mr. Wexler
Mr. Weiner
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz
Mr. Sensenbrenner, Chairman X
Total 26 2
----------------------------------------------
9. An amendment was offered by Mr. Nadler (for himself and Ms. Lofgren) to strike section 3 of H.R. 3199. Section 3 repeals section 224 of the USA PATRIOT Act that states authorities under sections 201, 202, 203(b) and (d), 204, 206, 207, 209, 212, 214, 215, 217, 218, 220, 223, and 225 of the USA PATRIOT Act (P.L. 107-296) expire on December 31, 2005. Mr. Lungren's amendment that passed would place a 10-year sunset on two of those sixteen provisions. Mr. Nadler's amendment would place a 10-year sunset on the remaining fourteen sections. The amendment failed by a recorded vote of 12 yeas to 21 nays.
ROLLCALL NO. 7
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher X
Mr. Nadler X
Mr. Scott X
Mr. Watt
Ms. Lofgren X
Ms. Jackson Lee
Ms. Waters
Mr. Meehan X
Mr. Delahunt X
Mr. Wexler
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz
Mr. Sensenbrenner, Chairman X
Total 12 21
----------------------------------------------
10. An amendment was offered by Mr. Van Hollen (for himself and Mr. Conyers) to amend section 2339A(a) of title 18 to specify that the transfer of a firearm to an individual whose name appears in the Violent Gang and Terrorist Organization File maintained by the Attorney General was under covered. The amendment failed by a recorded vote of 15 yeas to 22 nays.
ROLLCALL NO. 8
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon
Mr. Bachus
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher X
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee
Ms. Waters X
Mr. Meehan X
Mr. Delahunt X
Mr. Wexler X
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 15 22
----------------------------------------------
11. An amendment was offered by Mr. Schiff to prohibit surveillance for planning of terrorist attacks on mass transportation. The amendment passed by voice vote.
12. An amendment was offered by Ms. Lofgren to amend section 2339A of title 18 to specify that the transfer of 50-caliber sniper weapons to a member of al Qaeda. The amendment failed by a recorded vote of 13 yeas to 22 nays.
ROLLCALL NO. 9
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee
Ms. Waters X
Mr. Meehan
Mr. Delahunt
Mr. Wexler X
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 13 22
----------------------------------------------
13. An amendment was offered by Ms. Lofgren to amend section 1001 of USA PATRIOT Act to require the Inspector General for the Department of Justice to conduct a review of material witness detentions under section 3144 of title 18. The amendment passed by a recorded vote of 34 yeas to 0 nays.
ROLLCALL NO. 10
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher
Mr. Nadler X
Mr. Scott X
Mr. Watt
Ms. Lofgren X
Ms. Jackson Lee
Ms. Waters X
Mr. Meehan X
Mr. Delahunt X
Mr. Wexler X
Mr. Weiner
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 34 0
----------------------------------------------
14. An amendment was offered by Mr. Schiff to amend section 105(c) of the Foreign Intelligence Surveillance Act to require that where the identity of the target of surveillance is not known, a specific description is provided of the target. The amendment failed by a recorded vote of 15 yeas to 22 nays.
ROLLCALL NO. 11
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher X
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee
Ms. Waters X
Mr. Meehan X
Mr. Delahunt X
Mr. Wexler X
Mr. Weiner
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 15 22
----------------------------------------------
15. An amendment was offered by Mr. Watt to require that when a warrant is executed in a district other than the district in which it was issued, a recipient may seek to quash that warrant in the district in which it is served, or, if the `person is a corporation,' in any district in the State wherein the corporation was incorporated. The amendment failed by a recorded vote of 14 yeas to 24 nays.
ROLLCALL NO. 12
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher X
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee
Ms. Waters X
Mr. Meehan X
Mr. Delahunt X
Mr. Wexler X
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 14 24
----------------------------------------------
16. An amendment was offered en bloc by Mr. Schiff to, among other things, extend civil forfeiture in certain circumstances to `trafficking in nuclear, chemical, biological, or radiological weapons technology or material;' amend the current definition of `federal crime of terrorism,' to include new predicate terrorism offenses; and add new `wiretap predicates' under section 2516 of title 18 of the Federal criminal code that relate to crimes of terrorism. The amendment passed by voice vote.
17. An amendment was offered by Mr. Schiff to eliminate the nondisclosure requirement of a Foreign Intelligence Surveillance Court order for business records from a library or bookstore, or for medical records, when an individual is a citizen of the United States, at the conclusion of investigation. The amendment failed by a recorded vote of 13 yeas and 20 nays.
ROLLCALL NO. 13
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus X
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher X
Mr. Nadler
Mr. Scott X
Mr. Watt
Ms. Lofgren
Ms. Jackson Lee
Ms. Waters X
Mr. Meehan
Mr. Delahunt X
Mr. Wexler X
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 13 20
----------------------------------------------
18. An amendment was offered by Mr. Wexler to amend section 2339A(a) of title 18, the material support to terrorists provisions of the Federal criminal code, by inserting `reveals any information pertaining to the identity of undercover intelligence officers, agents, informants, and sources that the person has or should have reason to believe would be sufficient to be used to identify a United States intelligence operative.' The amendment failed by voice vote.
19. An amendment was offered by Ms. Lofgren that no Act of Congress shall be construed to suspend habeas corpus. The amendment failed by a recorded vote of 14 yeas to 23 nays.
ROLLCALL NO. 14
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus X
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher X
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee
Ms. Waters
Mr. Meehan
Mr. Delahunt X
Mr. Wexler X
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 14 23
----------------------------------------------
20. An amendment was offered by Mr. Watt (for himself and Ms. Waters) to strike section 8(c) of H.R. 3199 to eliminate the nondisclosure requirement of a Foreign Intelligence Surveillance Court order for business records in a national security case unless law enforcement in an `application for such an order provides specific and articulable facts giving the applicant reason to believe that disclosure would result' in adverse affects specified in the amendment. The amendment failed by a recorded vote of 13 yeas to 23 nays.
ROLLCALL NO. 15
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus X
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee
Ms. Waters X
Mr. Meehan
Mr. Delahunt X
Mr. Wexler X
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 13 23
----------------------------------------------
21. An amendment was offered by Mr. Scott to entitle a person who prevails on a challenge of the legality of a section 215 order to reasonable attorneys fees, if any, incurred by the person in pursuing the challenge. The amendment failed by a recorded vote of 14 yeas to 22 nays.
ROLLCALL NO. 16
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus X
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee
Ms. Waters X
Mr. Meehan
Mr. Delahunt X
Mr. Wexler X
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 14 22
----------------------------------------------
22. An amendment was offered by Mr. Schiff to extend for 3 years the sunset provision relating to individual terrorists as agents of foreign powers. The amendment failed by a recorded vote of 14 yeas to 22 nays.
ROLLCALL NO. 17
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus X
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee X
Ms. Waters X
Mr. Meehan
Mr. Delahunt X
Mr. Wexler
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 14 22
----------------------------------------------
23. An amendment was offered by Ms. Jackson Lee to provide notice of a physical search or surveillance if the subject of such search or surveillance is a United States person who is not an agent of a foreign power. The amendment failed by a recorded vote of 10 yeas to 23 nays.
ROLLCALL NO. 18
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus X
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman
Mr. Boucher
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren
Ms. Jackson Lee X
Ms. Waters
Mr. Meehan
Mr. Delahunt
Mr. Wexler
Mr. Weiner X
Mr. Schiff
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 10 23
----------------------------------------------
24. An amendment was offered by Mr. Flake (for himself and Mr. Nadler) to section 3103a(b)(3) of title 18 to clarify a reasonable period of time for notice of a search warrant to with a period of time of up to 180 days, with extensions of up to 90 day increments. The amendment passed by voice vote.
25. An amendment was offered by Mr. Conyers to create a statutory suppression rule for electronic surveillance and to require increased reporting. The amendment failed by a recorded vote of 14 yeas to 23 nays.
ROLLCALL NO. 19
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus X
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee X
Ms. Waters X
Mr. Meehan
Mr. Delahunt X
Mr. Wexler
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 14 23
----------------------------------------------
26. An amendment was offered by Mr. Nadler that would amend the laws governing national security letters to require the government to demonstrate why the request should not be disclosed. The amendment failed by a recorded vote of 14 yeas to 23 nays.
ROLLCALL NO. 20
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus X
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee X
Ms. Waters X
Mr. Meehan
Mr. Delahunt X
Mr. Wexler
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 14 23
----------------------------------------------
27. An amendment was offered by Mr. Scott to amend section 105(c) of the Foreign Intelligence Surveillance Act to require surveillance may be directed at a place or facility only for such time as the applicant believes that such facility or place is being used, or about to be used by the target of the surveillance. The amendment failed by a recorded vote of 13 yeas to 23 nays.
ROLLCALL NO. 21
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus X
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee X
Ms. Waters X
Mr. Meehan
Mr. Delahunt X
Mr. Wexler
Mr. Weiner X
Mr. Schiff
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 13 23
----------------------------------------------
28. An amendment was offered by Mr. Schiff that would require public disclosure of the use of national security letters. The amendment failed by a recorded vote of 15 yeas and 21 nays.
ROLLCALL NO. 22
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas)
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus X
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee X
Ms. Waters X
Mr. Meehan
Mr. Delahunt X
Mr. Wexler X
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 15 21
----------------------------------------------
29. An amendment was offered by Ms. Jackson Lee that would amend section 501(a)(1) of the Foreign Intelligence Surveillance Act to exclude medical records from the types of business records a Foreign Intelligence Surveillance Court order may seek. The amendment failed by a recorded vote of 12 yeas to 24 nays.
ROLLCALL NO. 23
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas)
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus X
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman
Mr. Boucher
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee X
Ms. Waters X
Mr. Meehan
Mr. Delahunt X
Mr. Wexler X
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 12 24
----------------------------------------------
30. An amendment was offered by Mr. Van Hollen to require the Inspector General of the Department of Justice to review the progress of the development of procedures established by the Terrorist Screening Center for the removal of misidentified individuals from the Terrorist Screening Database. The amendment failed by a recorded vote of 15 yeas to 23 nays.
ROLLCALL NO. 24
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus X
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee X
Ms. Waters
Mr. Meehan X
Mr. Delahunt X
Mr. Wexler X
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 15 23
----------------------------------------------
31. An amendment was offered by Mr. Nadler to authorize disclosure of the receipt of a national security letter to qualified persons, as defined by the amendment. The amendment failed by a recorded vote of 16 yeas to 23 nays.
ROLLCALL NO. 25
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus X
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee X
Ms. Waters X
Mr. Meehan X
Mr. Delahunt X
Mr. Wexler X
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 16 23
----------------------------------------------
32. An amendment was offered by Mr. Scott to broaden the exemption in the prohibition of providing material support to terrorists to also cover `medical services, drinking water, food, children's clothing, educational supplies or services, and other humanitarian materials and services that could not be diverted to military ends' to terrorists. The amendment failed by a recorded vote of 7 yeas to 31 nays.
ROLLCALL NO. 26
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus X
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren
Ms. Jackson Lee X
Ms. Waters X
Mr. Meehan X
Mr. Delahunt X
Mr. Wexler X
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 7 31
----------------------------------------------
33. An amendment was offered by Ms. Jackson Lee to require the Inspector General of the Department of Justice to review the use of any investigative authority under the Attorney General Guidelines on General Crimes, Racketeering Enterprises and Domestic Security/Terrorism Investigations beyond those approved by Attorney General Dick Thornburg in March 21, 1989. The amendment failed by a recorded vote of 13 yeas to 25 nays.
ROLLCALL NO. 27
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus X
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman X
Mr. Boucher
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee X
Ms. Waters X
Mr. Meehan X
Mr. Delahunt X
Mr. Wexler X
Mr. Weiner X
Mr. Schiff
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 13 25
----------------------------------------------
34. An amendment was offered by Nadler (for himself and Mr. Scott) to amend the statutes authorizing national security letters regarding judicial review. The amendment failed by voice vote.
35. Motion to report H.R. 3199, as amended was agreed to by a roll call vote of 23 yeas to 14 nays and 2 pass.
ROLLCALL NO. 28
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde X
Mr. Coble X
Mr. Smith (Texas) X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Lungren X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus X
Mr. Inglis X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Mr. Issa X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Feeney X
Mr. Franks X
Mr. Gohmert X
Mr. Conyers X
Mr. Berman Pass
Mr. Boucher
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee X
Ms. Waters X
Mr. Meehan X
Mr. Delahunt X
Mr. Wexler X
Mr. Weiner X
Mr. Schiff Pass
Ms. Sanchez X
Mr. Van Hollen X
Ms. Wasserman Schultz X
Mr. Sensenbrenner, Chairman X
Total 23 14 2 Pass
----------------------------------------------
In compliance with clause 3(c)(1) of rule XIII of the Rules of the House of Representatives, the Committee reports that the findings and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report.
Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new budgetary authority or increased tax expenditures.
In compliance with clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the Committee sets forth, with respect to the
bill, H.R. 3199, the following estimate and comparison prepared by the
Director of the Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974:
Hon. F. JAMES SENSENBRENNER, Jr.,
Chairman, Committee on the Judiciary
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 3199, the USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005.
If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is Mark Grabowicz.
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.
H.R. 3199--USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005
CBO estimates that implementing H.R. 3199 would have no significant cost to the federal government. Enacting the bill could affect direct spending and revenues, but CBO estimates that any such effects would not be significant.
The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 (Public Law 107-56), as well as the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108-458), expanded the powers of federal law enforcement and intelligence agencies to investigate and prosecute terrorist acts. H.R. 3199 would permanently authorize certain provisions of these acts, many of which will otherwise expire on December 31, 2005. In addition, the bill would make several other changes to the laws relating to investigations of potential terrorist activity.
Because those prosecuted and convicted under H.R. 3199 could be subject to civil and criminal fines, the federal government might collect additional fines if the legislation is enacted. Collections of civil fines are recorded in the budget as revenues. Criminal fines are recorded as revenues, then deposited in the Crime Victims Fund and later spent. CBO expects that any additional revenues and direct spending would not be significant because of the relatively small number of cases affected.
Section 4 of the Unfunded Mandates Reform Act (UMRA) excludes from the application of that act any legislative provisions that are necessary for national security. CBO has determined that the provisions of this bill are either excluded from UMRA because they are necessary for the national security or they contain no intergovernmental or private-sector mandates.
On July 18, 2005, CBO transmitted a cost estimate for H.R. 3199 as ordered reported by the House Permanent Select Committee on Intelligence on July 13, 2005. The two versions of the bill are similar and the cost estimates are identical.
The CBO staff contact for this estimate is Mark Grabowicz. This estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.
The Committee states that pursuant to clause 3(c)(4) of rule XIII of the Rules of the House of Representatives, H.R. 3199, will continue to provide enhanced law enforcement and intelligence investigative tools and improved information sharing while protecting civil liberties. By clarifying the authority provided under the USA PATRIOT Act and by eliminating much of the sunset provision in that Act and the Intelligence Reform and Terrorism Prevent Act, this bill provides certainty in the Federal criminal law, ensures that the metaphorical `Wall' is not rebuilt and thus information sharing can continue to improve between law enforcement and the Intelligence Community, and maintains the advancements in law enforcement technology to investigate and thwart terrorist and criminal activities.
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House of Representatives, the Committee finds the authority for this legislation in article 1 of the Constitution.
The section-by-section represents the bill as reported by the Committee on the Judiciary.
Section 1. Short Title
This Act would be cited as the `USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005.' Because the Act would repeal sunsets under the USA PATRIOT Act and the Intelligence Reform and Terrorism Prevention Act of 2004, the title refers to both Acts.
Section 2. References to PATRIOT Act
This section states that for this Reauthorization Act, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism shall be referred to as the USA PATRIOT Act.
Section 3. Repeal of USA PATRIOT Act sunset provision
This section repeals section 224 of the USA PATRIOT Act that stated authorities under sections 201, 202, 203(b) and (d), 204, 207, 209, 212, 214, 217, 218, 220, 223 and 225 of the USA PATRIOT Act (Pub. L. No. 107-296) would expire this year on December 31, 2005. The provision sunsetting sections 206 and 215 is extended until December 31, 2015.
The twelve hearings provided evidence that parts of the USA PATRIOT Act needed to be clarified, as Attorney General Gonzales and other Department of Justice officials have testified. However, witnesses did not provide any evidence that the Government or law enforcement was abusing the authorities of the USA PATRIOT Act to the Congress or to the Department of Justice Inspector General. The IG, as required by section 1001 of the USA PATRIOT Act, has issued 6 semiannual reports and has not found abuse by Department of Justice employees of these new authorities.
Section 4. Repeal of sunset of Individual Terrorists as Agents of Foreign Powers
Section 4 of this bill repeals section 6001(b) of the Intelligence Reform and Terrorism Prevention Act (IRTPA). Section 6001(b) sunsets section 6001 of IRTPA, which provided a additional definition for `Agent of a Foreign Power,' to cover the `lone wolf' under 50 U.S.C. 1801(b)(1). Section 1801(b)(1) defined `Agent of a foreign power' for any person other than a United States person, who--
Section 6001 of the IRTPA added new subparagraph C to the definition, which states `Agent of a foreign power' for any person other than a United States person, includes a person who `engages in international terrorism or activities in preparation thereof;'.
Section 6001(b) addressed oversight concerns about the provision, by applying the USA PATRIOT Act sunset to the provision so that definition sunsets on December 31, 2005.
Section 5. Repeal of sunset provision relating to section 2332B and the Material Support sections of Title 18, United States Code
This section repeals section 6603(g) of the IRTPA, which would sunset section 6603, the `Additions to Offense of Providing Material Support to Terrorism'. This sunset is problematic in many respects. First, it sunsets a criminal offense and not a law enforcement tool and, second, the sunset would effectively make the underlying provision unconstitutional. Section 805(a)(2)(B) of the USA PATRIOT Act was amended by section 6603 of the IRTPA of 2004, which covers the prohibition against providing material support to terrorists. The changes made in the IRTPA actually addressed court concerns on the constitutionality of the Federal crime of providing material support to terrorists.
On May 10, 2005, the Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on the material support provision as enhanced by the USA PATRIOT Act in 2001 and the IRTPA of 2004. The ban on providing material support to terrorists pre-dates the USA PATRIOT Act, as it was created in 1996 in the Antiterrorism and Effective Death Penalty Act. The 1996 Act, in part, was in response to the Oklahoma City and first World Trade Center terrorist attacks and made it illegal to knowingly provide material support to a group designated as a Foreign Terrorist Organization, better known as an FTO.
In 1998 a group, led by the Humanitarian Law Project, challenged the constitutionality of the ban, arguing it the violated the First Amendment. Both the 9th Circuit District Court and the Appeals Court rejected most of the First Amendment claims. The Appeals Court, for instance, rejected the free-association claim, finding that the statute does not prohibit membership in a group or support for the political goals of a group. The Appeals Court pointed out that `What [the law] prohibits is the act of giving material support, and there is no constitutional right to facilitate terrorism by giving terrorists the weapons and explosives with which to carry out their grisly missions.'
The 9th Circuit also rejected the plaintiffs' contention that the law could be interpreted to prohibit the giving of material support to the so-called terrorist groups' nonviolent humanitarian and political activities, concluding that the First Amendment did not create a right to give funds to terrorist groups. Money is fungible and the Court recognized that `when someone makes a donation to [terrorist groups], there is no way to tell how the donation is used.'
The Court did find that the language was too vague in areas, and focused on the terms `training' and `personnel.' The 9th Circuit also found in another case that the term `expert advice or assistance' was unconstitutionally vague. `Expert advice or assistance' is language from the USA PATRIOT Act. Congress corrected these vagueness problems with section 6603 of the IRTPA of 2004.
On December 21, 2004, the 9th Circuit Appeals Court recognized this correction in lifting an injunction that had barred the Government from prosecuting a Los Angeles group, if the group aided organizations classified as supporting terrorism. According to an Associated Press story dated December 22, 2004, the Court `said [its December 21] decision in Humanitarian Law Project v. Dept. of Justice was based partly on the IRTPA of 2004, which [President] Bush signed into law on [December 17, 2004].'
Section 6. Sharing of electronic, wire, and oral interception information
Section 6 responds to concerns that additional judicial oversight was needed for the sharing of criminal wiretap information to the Intelligence Community. Section 6 of the Act amends section 2517(6) of title 18, which was added by section 203(b) of the USA PATRIOT Act by requiring that `an officer or attorney who makes a disclosure under this subsection shall, within a reasonable time after that disclosure, notify the court that issued the wiretap order that such information was shared.' The Department of Justice stated at one of the many hearings on the USA PATRIOT Act that they could `take [such a proposal] under consideration and have a discussion about [it].' But `[w]ith respect to 203(d), relating to that sharing of information, [it] would put an unreasonable burden in terms of how we seek to exchange the information in a task force [i.e., JTTF and NTTC] approach.'
On April 19, 2005, the Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on Section 203, which facilitates effective sharing of information collected through the use of criminal wiretaps, grand juries, and other criminal investigations, with Executive Branch officials. To protect privacy, the USA PATRIOT Act: (1) limited such disclosures to foreign intelligence and counterintelligence information, as defined by statute; (2) restricted disclosure to officials with a need to know in performance of official duties; and (3) retained the limitations on public or other unauthorized disclosure. Prior to passage of the USA PATRIOT Act, the law hampered law enforcement from sharing information with or receiving information from other Government agencies outside of law enforcement that might nevertheless relate to terrorist activities or national security.
Section 203(b) deals with information obtained through a criminal wiretap. The section amended section 2517 of title 18 to allow law enforcement officials to share foreign intelligence or counterintelligence (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)), or foreign intelligence information (as defined in subsection (19) of section 2510 of this title) obtained through a criminal wiretap with law enforcement, intelligence, protective, immigration, national defense, or national security personnel for use only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information. The language in the USA PATRIOT Act is similar to section 103 of H.R. 2975, the PATRIOT Act that the House Judiciary Committee reported favorably with unanimous consent.
While some argued that the Committee should require similar notice to a court with regard to section 203(d), which authorizes the sharing of information from a criminal investigation, the Committee concluded that such a change would effectively eliminate the ability of law enforcement and anti-terrorism task forces--such as the Joint Terrorism Task Forces (JTTFs)--to operate. Much of that information used by these task forces is not under a court order requiring notice. To require notice defeats the purpose of section 203(d) and would create a statutory `wall' preventing vital information from being shared.
Section 7. Duration of FISA of Non-United States persons
Prior to enactment of the USA PATRIOT Act, the Government had 90 days to carry out surveillance and 45 days to conduct a physical search under a FISA court order before seeking an extension. Because it often takes longer than these established periods to get on the premises or to conduct electronic surveillance, and the delay in applying for an extension or reapplying for a new order posed a threat to national security. To address this problem, the USA PATRIOT Act added 30 days to the authorized period for surveillance from 90 days to 120 days. It also extended the period for physical searches from 45 days to 90 days.
Attorney General Gonzalez requested at the April 6, 2005, hearing before the Full Committee that section 207 of the USA PATRIOT Act be amended. He stated: `Another important FISA-related Patriot Act provision is Section 207. Prior to this law, the Justice Department invested considerable time returning to court to renew existing orders. Section 207 substantially reduced this investment of time by increasing the maximum time duration for FISA, electronic surveillance, and physical search orders.'
The Department of Justice estimates that the enactment of section 207 has saved nearly 60,000 attorney hours, or 30 lawyers a year's of work. According to the Justice Department, this estimate did not account for time saved by FBI agents, administrative staff, and the judiciary. This section of H.R. 3199 would extend the maximum duration of orders for electronic surveillance and physical search targeted against agents of foreign powers who are not United States persons. Specifically, initial orders authorizing searches and electronic surveillance would be for periods of up to 120 days, and renewal orders would extend for periods of up to one year.
The USA PATRIOT Act did not amend the permissible duration of orders for pen register and trap and trace surveillance under FISA. The current duration of initial and renewal orders for installation and use of a pen register or trap and trace device is for a period not to exceed 90 days. This section would extend the maximum duration of both initial and renewal orders for pen register and trap and trace surveillance, in cases where the Government certified that the information likely to be obtained is foreign intelligence information not concerning a United States person, for a period of one year.
This section would allow the United States and the Foreign Intelligence Surveillance Court to focus more scrutiny on applications for surveillance involving United States persons. This section would also allow intelligence officials to spend more time investigating potential terrorist or espionage activity by non-U.S. persons, rather than wasting valuable time returning to the Foreign Intelligence Surveillance Court to extend surveillance against such persons that had already been authorized. Indeed, the Department of Justice estimates that had these proposals been included in the USA PATRIOT Act, the Department would have saved 25,000 attorney hours. These ideas were specifically endorsed in the recent report of the WMD Commission, which said that the amendments would allow the Department both to `focus their attention where it is most needed' and maintain the current level of oversight paid to cases implicating the civil liberties of Americans.
Section 8. Access to certain business records under section 501 of FISA
Section 7 of the bill would clarify that a recipient of a 215 order may consult with a lawyer and the appropriate people necessary to respond to the order. The section would also clarify that the FISA order may be challenged.
Additionally, the language amends section 215 to clarify that the court has discretion to issue an order. The amending language states that `if a judge finds that the application meets the requirements of subsections (a) and (b), the judge shall enter an ex parte order as requested, or as modified, approving the release of records.' The current language is unclear with respect to the discretion it provides to judges because it states that the `judge shall' issue an order and later mentions that this order will only be issued `if the judge finds that the requirements have been met.' The language does not clearly specify what those requirements, so the language in H.R. 3199 does.
As was highlighted by the hearings held by this Committee, for years prior to and since enactment of the USA PATRIOT Act, law enforcement could obtain records from all manner of businesses through grand jury issued subpoenas. Section 215 of the USA PATRIOT Act created similar authority, but with more stringent requirements. Section 215 authorizes the FISA court the discretion to issue an order for business records related to `international terrorism and clandestine intelligence activities.' These judicial orders conceivably could be issued to bookstores or libraries, but section 215 does not single them out. Section 215 has a very narrow scope that can only be used (1) `to obtain foreign intelligence information not concerning a United States person'; or (2) `to protect against international terrorism or clandestine intelligence activities.' 50 U.S.C. Sec. 1861(b)(2).
FBI agents cannot obtain records under section 215 unless they receive a court order. Grand jury subpoenas, by contrast, do not require judicial approval. Agents cannot use section 215 to unilaterally compel libraries or any other entity to turn over their records. Agents must obtain such documents only by appearing before the FISA court and convincing the court that these business records are needed. See 50 U.S.C. Sec. 1861(b). Additionally, section 215 goes to great lengths to preserve the First Amendment rights of libraries, their patrons, and other affected entities as it expressly provides that the FBI cannot conduct investigations `of a United States person solely on the basis of activities protected by the first amendment to the Constitution of the United States.' 50 U.S.C. 1861(a)(2). Section 215 provides for thorough congressional oversight; every six months, the Attorney General is required to `fully inform' Congress on the number of times agents have sought a court order under section 215, as well as the number of times such requests were granted, modified, or denied. See 50 U.S.C. 1862.
Section 9. Report relating to emergency disclosures under section 212 of the USA PATRIOT Act
This section would amend section 2702 of title 18, as amended by section 212 of the USA PATRIOT Act. Section 212 allowed Internet service providers to voluntarily disclose the contents of electronic communications as well as subscriber information in emergencies involving immediate danger of death or serious physical injury. To address concerns that this authority, in certain circumstances, is not subject to adequate congressional, judicial or public oversight (particularly in situations where the authority is used but criminal charges do not result) the amendment would require the Attorney General to report annually to the Judiciary Committees of the House and Senate and set forth the number of accounts subject to a section 212 disclosure. The report would also have to summarize the basis for disclosure in certain circumstances. The Committee believes this would strengthen oversight on the use of this
authority without undermining important law enforcement prerogatives, and without tipping off perpetrators while simultaneously preserving the vitality of this life saving authority.
Section 10. Specificity and notification for roving surveillance under the Foreign Intelligence Surveillance Act
Section 206 of the PATRIOT Act enabled use of roving wiretaps in FISA investigations. The Amendment would require intelligence investigators to notify to the FISA Court within 10 days each time it initiates surveillance on a new communications facility pursuant to a FISA roving wiretap. By requiring that the FISA Court be regularly informed on an ongoing basis for all multi-point wiretaps, the Amendment would address Members' concerns that the open-ended authorization to surveil new locations could be abused. The Amendment does this by providing an extra layer of judicial review and ensures that intelligence investigators will not abuse the multi-point authority. This approach is superior in the FISA context (where surveillance is often long-running and subject to extensive and sophisticated counter-surveillance measures) than a proximity test or ascertainment requirement that could endanger an investigation or field agents conducting the investigation.
Section 11. Prohibition on planning terrorist attacks on mass transportation
This section amends section 1993a of title 18 of the Federal Criminal code that protects against Terrorist attacks and other acts of violence against mass transportation systems. Section 1993 of title 18 covers attacks on mass transportation systems but did not cover the planning for such attacks. This provision closes that loophole and makes it a crime to `surveil, photograph, videotape, diagram, or to otherwise collect information with the intent to plan or assist in planning any of the acts described' in paragraphs (1)-(5) of section 1993a.
Section 12. Enhanced review of material witness detention
This section would amend section 1001 of the USA PATRIOT Act to require the Inspector General for the Department of Justice to conduct a review of material witness detentions under section 3144 of title 18.
Section 13. Forfeiture
The USA PATRIOT Act amended 18 U.S.C. Sec. 981 to expressly provide that any property used to commit or facilitate the commission of, derived from, or otherwise involved in a Federal crime of terrorism (as defined in 18 U.S.C. 2331) is subject to civil forfeiture provisions. Prior to the USA PATRIOT Act, only the `proceeds' of a crime of terrorism were subject to civil forfeiture provisions. This amendment would extend forfeiture to `trafficking in nuclear, chemical, biological, or radiological weapons technology or material,' after 'activities'.
Section 14. Predicate offenses
This section amended the current definition of `federal crime of terrorism,' to include new predicate offenses. This list of predicate offenses is referenced by other sections of the Act, and certain provisions of the Act are made applicable to offenses appearing on this list. This section adds crimes relating to military-type training from a foreign terrorist organization; and relating to nuclear and weapons of mass destruction threats.
Section 15. Wiretap predicates
`Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sec. 2510-2522 (1994 & Supp. II 1996), requires the government, unless otherwise permitted, to obtain an order of a court before conducting electronic surveillance. The government is permitted to seek such orders only in connection with the investigation of the criminal offenses enumerated in section 2516 of title 18.' 68
[Footnote] This section added new `wiretap predicates' under section 2516 of title 18 of the Federal criminal code that relate to crimes of terrorism.
[Footnote 68: October 17, 2000, Memorandum for the Counsel, Office of Intelligence Policy and Review, U.S. DOJ.]
Section 16. Defines reasonable period of delay under the USA PATRIOT Act
Contrary to reports, the USA PATRIOT Act did not create delayed notice search warrants. Delayed notice search warrants have been used for decades prior to enactment of the USA PATRIOT Act. In 1979, the U.S. Supreme Court expressly held in Dalia v. United States that the Fourth Amendment does not require law enforcement to give immediate notice of the execution of a search warrant. 69
[Footnote] The Department of Justice states that three Federal courts of appeals had considered the constitutionality of delayed-notice search warrants since 1979 and upheld their constitutionality. 70
[Footnote]
[Footnote 69: See Dalia v. United States, 441 U.S. 238 (1979); see also Katz v. United States, 389 U.S. 347 (1967).]
[Footnote 70: April 4, 2005 U.S. Department of Justice letter to Senator Spector. p. 3 citing See United States v. Freitas, 800 F.2d 1451 (9th Cir. 1986); United States v. Villegas, 899 F.2d 1324 (2d Cir. 1990); United States v. Simons, 206 F.3d 392 (4th Cir. 2000).]
A delayed notice search warrant simply means that a court has expressly authorized investigations to delay notifying a suspect that a search warrant has been executed (i.e., a court-ordered search has occurred). The search warrant is the same regardless of when the suspect receives notice. Thus, before a search warrant is issued, whether notice is delayed or not, a Federal judge must find that there is probable cause to believe the property to be searched or seized constitutes evidence of a criminal offense.
Congress included section 213 in the USA PATRIOT Act to create a uniform nationwide standard for the issuance of these warrants. Under section 213 there are limited circumstances when a court may delay notice. These circumstances are the same predicate circumstances permitted in an application for delaying notice in a search warrant for stored communications under section 2705(a)(2) of title 18, which predated the USA PATRIOT Act. For a court to permit a delay in the notice of a search of a suspect's property, the investigator or prosecutor must show that there is reasonable cause to believe that if the suspect is notified at the same time as the search one of the following situations may occur:
Section 213 permits delay limited only by a reasonableness requirement. Members are concerned by this seemingly open-ended term. This Amendment would permit delays for up to 180 days, and would enable orders to be renewable in up to 90 day increments.
In compliance with clause 3(e) of rule XIII of the Rules of the House of Representatives, changes in existing law made by the bill, as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, existing law in which no changes are proposed is shown in roman):
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[ SEC. 224. SUNSET. ][<-Struck out][ (a) IN GENERAL-
Except as provided in subsection (b), this title and the amendments
made by this title (other than sections 203(a), 203(c), 205, 208, 210,
211, 213, 216, 219, 221, and 222, and the amendments made by those
sections) shall cease to have effect on December 31, 2005. ][<-Struck out][ (b) EXCEPTION-
With respect to any particular foreign intelligence investigation that
began before the date on which the provisions referred to in subsection
(a) cease to have effect, or with respect to any particular offense or
potential offense that began or occurred before the date on which such
provisions cease to have effect, such provisions shall continue in
effect. ][<-Struck out]* * * * * * *
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SEC. 103. (a) * * *
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[ where the Court finds ][<-Struck out] where the Court finds, based upon specific facts provided in the application,
that the actions of the target of the application may have the effect
of thwarting the identification of a specified person, such other
persons, furnish the applicant forthwith all information, facilities,
or technical assistance necessary to accomplish the electronic
surveillance in such a manner as will protect its secrecy and produce a
minimum of interference with the services that such carrier, landlord,
custodian, or other person is providing that target of electronic
surveillance;[ and ][<-Struck out][ . ][<-Struck out] ; and* * * * * * *
[ , as defined in section 101(b)(1)(A) ][<-Struck out] who is not a United States person may be for the period specified in the application or for 120 days, whichever is less.[ as defined in section 101(b)(1)(A) ][<-Struck out] who is not a United States person may be for a period not to exceed 1 year.* * * * * * *
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[ as defined in section 101(b)(1)(A) ][<-Struck out] who is not a United States person may be for the period specified in the application or for 120 days, whichever is less.[ as defined in section 101(b)(1)(A) ][<-Struck out] who is not a United States person,
may be for a period not to exceed one year if the judge finds probable
cause to believe that no property of any individual United States
person will be acquired during the period.* * * * * * *
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[ (e) An ][<-Struck out] (e)(1) Except as provided in paragraph (2), an
order issued under this section shall authorize the installation and
use of a pen register or trap and trace device for a period not to
exceed 90 days. Extensions of such an order may be granted, but only
upon an application for an order under this section and upon the
judicial finding required by subsection (d). The period of extension
shall be for a period not to exceed 90 days.* * * * * * *
[ to obtain foreign
intelligence information not concerning a United States person or to
protect against international terrorism or clandestine intelligence
activities. ][<-Struck out] and that
the information likely to be obtained from the tangible things is
reasonably expected to be (A) foreign intelligence information not
concerning a United States person, or (B) relevant to an ongoing
investigation to protect against international terrorism or clandestine
intelligence activities.[ (c)(1) Upon an
application made pursuant to this section, the judge shall enter an ex
parte order as requested, or as modified, approving the release of
records if the judge finds that the application meets the requirements
of this section. ][<-Struck out]* * * * * * *
[ (d) No
person shall disclose to any other person (other than those persons
necessary to produce the tangible things under this section) that the
Federal Bureau of Investigation has sought or obtained tangible things
under this section. ][<-Struck out]* * * * * * *
SEC. 105. (a) * * *
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SEC. 6001. INDIVIDUAL TERRORISTS AS AGENTS OF FOREIGN POWERS.
[ (a) IN GENERAL- Section ][<-Struck out] Section
101(b)(1) of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801(b)(1)) is amended by adding at the end the following new
subparagraph:[ (b) SUNSET- The
amendment made by subsection (a) shall be subject to the sunset
provision in section 224 of Public Law 107-56 (115 Stat. 295),
including the exception provided in subsection (b) of such section 224.
][<-Struck out]* * * * * * *
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SEC. 6603. ADDITIONS TO OFFENSE OF PROVIDING MATERIAL SUPPORT TO TERRORISM.
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[ (g) SUNSET PROVISION- ][<-Struck out][ (1) IN
GENERAL- Except as provided in paragraph (2), this section and the
amendments made by this section shall cease to be effective on December
31, 2006. ][<-Struck out][ (2)
EXCEPTION- This section and the amendments made by this section shall
continue in effect with respect to any particular offense that-- ][<-Struck out][ (A) is prohibited by this section or amendments made by this section; and ][<-Struck out][ (B) began or occurred before December 31, 2006. ][<-Struck out]* * * * * * *
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[ or ][<-Struck out][ (8) ][<-Struck out] (9) attempts, threatens, or conspires to do any of the aforesaid acts,* * * * * * *
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[ of its ][<-Struck out] , which shall not be more than 180 days, after its execution, which period may thereafter be extended for additional periods of not more than 90 days each by the court for good cause shown.* * * * * * *
House of Representatives,
Committee on the Judiciary,
--Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in Room 2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [Chairman of the Committee] presiding.
Chairman SENSENBRENNER. The Committee will be in order. A working quorum is present, and without objection, the Chair is authorized to declare recesses of the Committee during consideration of noticed bills. Hearing none, so ordered.
Pursuant to notice, I now call----
Mr. WATT. Mr. Chairman, we are having trouble hearing you.
Chairman SENSENBRENNER. Excuse me. Pursuant to notice, I now call up the bill H.R. 3199, the `USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005,' for purposes of markup and move its favorable recommendation to the House. Without objection, the bill will be considered as read and open for amendment at any point. Hearing no objection, so ordered.
[The bill, H.R. 3199, follows:]
Chairman SENSENBRENNER. The Chair now recognizes himself for 5 minutes to explain the bill.
Today we are marking up H.R. 3199, the `USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005,' in the wake of deadly and tragic terrorist attacks. Last week, innocent people in London were murdered in a series of coordinated attacks executed with ruthless precision. And last year, Spain was victimized by similar acts of terrorism directed at mass transit. We pray for the innocent victims and their families of these recent attacks and stand firmly with them in their time of grief.
Though the terrorists' goal is to shake the foundation of our democracies, these heinous acts have only strengthened our resolve to defeat them. I believe that both Congress and the Bush administration deserve credit for reacting quickly to take the terrorist threat head on by providing the hard-working men and women of law enforcement, the intelligence community, and our armed services with the tool they need to prevent another attack here at home. The PATRIOT Act was one important initiative.
While many, including myself, continue to be wary of the Government having any more authority than absolutely necessary, we must view attacks as an important reminder that the specter of terrorism remains a clear and present danger to free nations around the world, and that we are still very much at war against an enemy that will do anything in its power to kill innocent citizens.
I strongly believe that we must not take any steps that might compromise the ability of law enforcement to thwart future acts of terrorism. Accordingly, the legislation that I have introduced and we consider here today will permanently extend the important antiterrorism tools contained in the PATRIOT Act.
This bill is based upon 4 years of extensive oversight consisting of hearing testimony, Inspector General reports, briefings, and oversight letter. The materials on the left side of the clerk's table over there show the Committee's efforts to engage in aggressive oversight. Since April of this year alone, the Committee has heard testimony from 35 witnesses during 11 hearings on the PATRIOT Act. That testimony and oversight has demonstrated that the PATRIOT Act has been an effective tool against terrorists as well as criminals intent on harming innocent people and, therefore, deserves to be extended permanently, subject to several modifications contained in the bill.
While there should continue to be a healthy public debate on how best to ensure the safety of our citizens, the security of the American people should not be subject to arbitrary expiration dates and should not provide an excuse for divisive partisan debates or political fundraising. To address concerns that judicial--judicial oversight is necessary when criminal wiretap information was shared with the intelligence community, the bill would amend current law to require that an officer or attorney who makes a disclosure under this subsection within a reasonable time after that disclosure notify the court that issued the wiretap order that such information was shared.
Based upon concerns expressed by the Commission on Weapons of Mass Destruction, the bill extends the duration of the Foreign Intelligence Surveillance Act order for non-United States persons. DOJ estimates that the enactment of Section 207 has saved nearly 60,000 attorney hours or 30 lawyers a year's worth of work.
Finally, this bill addresses Section 215, which has been inaccurately characterized by many and, as a result, has unnecessarily caused much public consternation. While I recognize the good intentions of those voting to limit the authority of Section 215, I am concerned that limitations only make Americans more vulnerable to terrorism.
This bill amends Section 215 of the PATRIOT Act to clarify that the information likely to be obtained is reasonably expected to be foreign intelligence information not concerning a U.S. person or information relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities.
The legislation would also clarify that a FISA 215 order may be challenged and that a recipient of a 215 order may consult with the lawyer and the appropriate people necessary to respond to the order.
Finally, the bill expressly clarifies that an order will only be issued if the judge finds that the requirements have been met and sets up a judicial review process that authorizes the judge to set aside or affirm a 215 order has been changed.
As Chairman of this Committee, I have made every effort to strike an appropriate balance between liberty and security. This bill reflects this balance and is the product of comprehensive and bipartisan legislative consideration. I urge that the bill be approved, and I recognize the gentleman from Michigan, Mr. Conyers, for an opening statement.
Mr. CONYERS. Thank you, Mr. Chairman, and I'm happy to see my colleagues back after the strenuous All Star Game in Detroit yesterday evening, which required me to get up a 4 o'clock. But might I ask unanimous consent for the gentlelady from Texas, Ms. Jackson Lee, to speak for 1 minute out of order because she is going to be leaving to return there for some very important activity that's going on.
Chairman SENSENBRENNER. Without objection.
Mr. CONYERS. I thank you.
Ms. JACKSON LEE. This is a very important day. I thank you very much, Mr. Conyers and Mr. Chairman. Because of my 10-year membership on the Space and Aeronautics Subcommittee of the Science Committee, I will be attending the restoration of human Space Shuttle flight in Florida today and will be in and out and not at my desk. I recognize that our Nation is looking at a very important step, and today, of course, that step is looking at the reauthorization of the PATRIOT Act.
I look forward to the debate in the days to come, and I remind my colleagues that I know that this is a Nation of laws, but it is also a Nation of liberty, and the PATRIOT Act must reflect that liberty.
I thank my colleagues, and I ask unanimous consent that any additional statement may be put into the record for this Committee.
I yield back.
[The prepared statement of Ms. Jackson Lee follows:]
Chairman SENSENBRENNER. Without objection, and the Chair will reset the clock for the gentleman from Michigan, who is recognized for 5 minutes.
Mr. CONYERS. Thank you, Mr. Chairman.
Members of the Committee, we begin the important reauthorization of the PATRIOT Act, but I don't think this discussion can proceed correctly unless we acknowledge that the PATRIOT Act that the Committee passed 36-0 was suspended and pulled out of the Rules Committee and replaced with a bill that no one on the Committee that I know of had seen before it came from the Rules Committee. So we're working under an extremely serious abuse of process on a measure of this magnitude.
Nevertheless, my comments divide into three categories: first of all, there's the 16 sunset provisions which we are called to re-examine; the second are problems with the PATRIOT Act that were not the object of sunset provisions, some of which we were afforded hearings, at least one, maybe two, to deal with these problems with the PATRIOT Act; and the third category that I would bring to your attention, my colleagues, is the abuses of process that are not within the PATRIOT Act but could easily be confused for being part of the PATRIOT Act, some because of the secrecy of the way some of these things are handled by the administration, the Department of Justice, the FBI. Sometimes you can't tell whether it's PATRIOT Act or not.
So let me just point out a couple of the problems in the sunsetting provisions. Section 206 and 215 leap out at us as we review this matter. The roving wiretaps, Section 206, which allows surveillance orders which specify neither person nor place to be surveilled. It's a roving wiretap, a John Doe roving wiretap, and we essentially do not address this measure to my satisfaction.
The second matter is the Section 215 that allows the FBI to get an order, a secret order, for anything from anyone whenever they ask a secret court. The bill has a convoluted proposal that falls far short of satisfactory protecting the civil liberties of our citizenry.
Now, within the PATRIOT Act itself, I bring your attention to the material support statute which makes criminals out of people who give money to charities or volunteer their services with no intention to ever help terrorists, and if it turns out that there is a mistake made, this helps them get prosecuted. I object to this.
Section 213, the infamous sneak-and-peek provision, which gives unprecedented authority to the Federal Bureau of Investigation to go into a citizen's home or business without telling him or her for indefinite periods of time. The bill does not satisfactorily address this matter.
And then there is the national security letters, which have no judicial review, compel people to turn over sensitive records, and gags them from even discussing their situation with a lawyer.
We also have the problem of administrative subpoenas. Administrative subpoenas circuit--get around the regular process of subpoenas in which a court reviews them, and they're issued by the Department of Justice. And so I think this is a very big problem.
May I point out in closing that the----
Chairman SENSENBRENNER. The gentleman's time has expired and without objection is recognized for an additional minute.
Mr. CONYERS. I thank the Chair.
There are some non-PATRIOT Act abuses that are still--that should be the subject of our concerns, and one is the abuse and torture of detainees at at least three places in the Western hemisphere, and other places, actually, of violence, abuse, harassment, which violates the Geneva Convention and the Convention Against Torture.
Then we have the abuse of the immigration system to deny due process rights and indefinitely detain people within the borders; the use of racial profiling, which has rounded up thousands of Middle Eastern and Muslim men with no known effect of preventing terrorism; weeks, months later, they are released. They're frequently held incommunicado from their family or counsel. And, finally, the abuse of the material witness statute to detain those who the Department may not having anything else to hold them on, and so they hold them as a material witness.
All of these are issues I hope we will be able to consider in the course of this markup, and I thank the Chair for the additional time.
Chairman SENSENBRENNER. The time of the gentleman has once again expired. Without objection, all members may insert opening statements in the record at this point.
Are there amendments?
Mr. SCOTT. Mr. Chairman?
Chairman SENSENBRENNER. The gentleman from Virginia, for what purpose do you seek recognition?
Mr. SCOTT. Mr. Chairman, I move to strike the last word.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. Chairman, recently I wrote a letter complaining about having a full Committee markup without a hearing on the bill or a Subcommittee mark. As the gentleman from Michigan has pointed out, the last time we considered the PATRIOT Act, we considered a bill, did hard work, but after all the hard work had been done, they switched versions and we considered on the floor something other than what we had considered.
Here we had extensive hearings in general, but none on the bill itself. There's been no opportunity for the public to have input on the bill or to prepare amendments to the bill as introduced.
Now, it was my understanding from the Chairman of the Subcommittee that we would have hearings on the bill, and we wrote a letter--I haven't received a response. Perhaps if I yield to the gentleman from North Carolina, he could explain what his understanding was about a hearing on the bill after it had been introduced. Wasn't it our understanding that there would be a hearing? I yield.
Mr. COBLE. If the gentleman would yield, this is a case of first impression because the distinguished gentleman from Virginia and I have gotten along very harmoniously and will continue to do so. But, Mr. Scott, I don't recall that. I don't recall that I indicated any subsequent hearing on this bill.
You will recall, Mr. Scott and colleagues, that our Subcommittee hosted nine hearings on this matter. The full Committee, as best I recall, Mr. Chairman, hosted two or three, I think three, giving a total of 12 hearings. And, Mr. Scott, if that was your impression, I think you misunderstood me because I don't recall having said that.
Mr. SCOTT. Well, apparently I did--reclaiming my time, apparently I did misunderstand because it was my understanding that we would, after all those hearings, have a hearing on the bill. Obviously that's not the case, and, Mr. Chairman, I just want to register my complaint that we are not having a hearing or a Subcommittee mark on a bill that is extremely complex and I think could benefit from a hearing on the bill so that the public could have input and a Subcommittee mark so that many of the more controversial areas could be identified. But obviously that's not going to be the case, and we'll do the best we can under this procedure.
Mr. NADLER. Mr. Chairman?
Mr. SCOTT. I yield back.
Mr. NADLER. Mr. Chairman?
Chairman SENSENBRENNER. For what purpose does the gentleman from New York seek recognition?
Mr. NADLER. Strike the last word.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. NADLER. Thank you.
Mr. Chairman, I would like to associate--begin by associating myself with the remarks of the gentleman from Virginia, and I believe I joined in sending that letter. But I want to go a little further or a little differently.
It's not just that we haven't had a hearing on the bill. We had extensive hearings, and I want to commend the Chairman and the Committee for holding extensive hearings on the general subject matter. But the Chairman's mark, that is to say, the bill that we have before us that we're going to be dealing with, was only made available to anyone, I think, late Friday. And as I said 4 years ago--and the Chairman and I engaged in a colloquy on the floor 4 years ago on this subject--this is the kind of bill of a complex nature and a sensitive and delicate nature where we are balancing a very, very legitimate and pressing and compelling need for promoting the security of the people of this Nation with equally compelling need for preserving the liberties of the people of this Nation. And we have to do a bill that does both and balances it to the best of our ability.
And when the bill came out 4 years ago, this bill was only in print, as I recall, Wednesday at 10 o'clock, and we started debating at 11 o'clock and voted at 1 o'clock. And I said at that time that this is the kind of bill that, because of the sensitive balancing nature, should be available to the public. We should send it out to the law schools, to the Civil Liberties Union, to the American Conservative Union, to other people, get their comments on the text, get their suggested amendments, not just those that our staff dreams up in 2 days, but get--vet this in public, vet this through the various experts around the country, and then go into a markup.
We were told 4 years ago we didn't have time, that if we waited a week, there would be blood on our hands. The Chairman on the floor said it was true that we were doing this in great haste, but the ideas in this bill have been around a long time. I said on the floor, yeah, the ideas have been around a long time, good ideas, bad ideas, mediocre ideas, and which ideas have gotten into the bill and to what extent wasn't clear since we haven't had a chance to read it.
Now, there is no commensurate rush. This bill is not expiring tomorrow. Nothing expires until the end of the year. So I would--I had suggested, and I still believe that since nobody saw this mark, this bill until Friday night, we should take a week or two--a week and mark up the bill a week later so that people in the country at large--the Civil Liberties Union, the Conservative Union, the various libertarian groups, the law schools, everybody has a chance to look at this text, look at proposed amendments. There's no reason why we shouldn't make proposed amendments from both sides of the aisle available, and get people's comments. Why should we legislate in a vacuum as if all wisdom resides in this room?
Now, I will concede a considerable amount of wisdom does reside in this room on both sides of the aisle, but not always, though. So I would--it may be a little late at this point, but I would hope that we wouldn't finish work on this this week. We really should put it off for at least a week because we should give the country a chance to express itself--not the entire country but interested parties, law school professors, as I have said before, people, law enforcement people, civil liberties people, an opportunity to look at this bill, not just at the concept, not just at the existing law, but at the bill, and at the suggested amendments and express themselves. We might get some better ideas, and maybe that would reduce the number of amendments that we feel compelled to offer. Maybe it would increase it. Who knows? But we might legislate in a more informed manner.
And since this bill does not expire until the end of the year, there's not a rush. There is plenty of business on the floor to keep the floor busy. And, in fact, because of the--I will say, the efficient manner in which the leadership of this House has conducted business this year, we're way ahead of the Senate. We're going to have to wait for them anyway. We've done all the appropriations bills. They've done one or two of them. So we've got plenty of time. I don't understand the nature of the rush here and why we can't simply consider this a week before we--before we're asked to vote on these amendments and give people outside this Committee room the chance to comment and maybe to give us a little more wisdom.
I thank the Chairman and I yield back.
Chairman SENSENBRENNER. The time of the gentleman has expired.
Are there amendments? The gentleman from California, Mr. Lungren.
Mr. LUNGREN. Mr. Chairman, I have an amendment at the desk.
Chairman SENSENBRENNER. The clerk will report the amendment.
The CLERK. Mr. Chairman, I have two amendments.
Chairman SENSENBRENNER. Will the gentleman from California please inform the clerk which amendment he wishes to offer?
Mr. LUNGREN. It's the longer of the two.
Chairman SENSENBRENNER. The clerk will report.
The CLERK. Amendment to H.R. 3199, offered by Mr. Lungren of California. At the appropriate place insert the following: SEC----. Report. Section 2702 of title 18, United States Code, as amended by section 212 of the US PATRIOT Act, is amended by inserting at the end of the following: (d) Report- On an annual basis, the Attorney General shall submit to the Committees on the Judiciary of the House and the Senate a report containing--(1) the number of accounts from which the Department of Justice has received voluntary disclosures under subsection (b)(8) of this section; and (2) a summary of the basis for disclosure in those instances where--(A) voluntary disclosure under subsection (b)(8) of this section were made to the Department of Justice; and (B) the investigation pertaining to those disclosures was closed without the following of criminal charges.
[The amendment of Mr. Lungren follows:]
Chairman SENSENBRENNER. The gentleman from California is recognized for 5 minutes.
Mr. LUNGREN. Thank you very much, Mr. Chairman.
Mr. Chairman, this deals with Section 212 of the PATRIOT Act. That is the section which permits the disclosure of the content of a communication while in electronic storage to Government entities by a service provider. Specifically, the provider is allowed to divulge the contents of a communication where the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person requires the disclosure of the information without delay.
Under such exceptional life-threatening circumstances, permitting the disclosure of such information to law enforcement is certainly understandable. I think our hearings showed that. However, at the same time, since it also does involve the contents of a communication by a third party, I felt that some accountability is necessary to ensure that this authority is not being abused.
My amendment provides that the Attorney General shall on an annual basis submit to this Committee and our counterpart in the other body a report which must reveal the number of accounts from which the Department receives disclosures of information under Section 212. My amendment would also specifically require the Department to provide a summary of the basis for disclosure in those cases where the investigation was closed without the filing of criminal charges. This information I believe should be highly beneficial to the Committee, fulfilling our oversight responsibility in the future, and I ask for your support.
I believe, Mr. Chairman, this is the best way for us to have a ready manner of looking at this particular section. In the hearings that we had, I found no basis for claiming that there has been abuse of this section. I don't believe on its face it is an abusive section. But I do believe that it could be subject to abuse in the future and, therefore, this allows us as Members of Congress to have an ability to track this on a regular basis.
Chairman SENSENBRENNER. Does the gentleman yield back?
Mr. LUNGREN. I yield back the balance of my time.
Chairman SENSENBRENNER. The question is on agreeing to the amendment offered by the gentleman----
Mr. DELAHUNT. Mr. Chairman?
Chairman SENSENBRENNER. The gentleman from Massachusetts, Mr. Delahunt.
Mr. DELAHUNT. I support the gentleman's amendment, and I would just ask some questions.
I did not hear the gentleman refer to any other language other than just simply increased reporting to Congress. Is that accurate?
Mr. LUNGREN. Yes. It requires--it requires a report. No such report is required at the present time for this specific section.
Mr. DELAHUNT. Can the gentleman inform me whether it provides notice to persons whose communications have been disclosed?
Mr. LUNGREN. It does not provide notice. I considered that. I considered going to a court. I also considered giving notice. But because of the possibility of a continuing ongoing investigation, I thought this was the best way for us to enter into it. We're the other party that looks at it that would hopefully have regular oversight of the Justice Department in this regard.
Mr. DELAHUNT. Does it provide in any way, shape, or form for after-the-fact review by a court?
Mr. LUNGREN. No, it does not. I considered that. I thought upon consideration this made more sense.
Mr. DELAHUNT. I would hope that the gentleman would consider a conversation with myself and other members who support this amendment but feel that there should be additional provisions within this--within this particular amendment that would consider those particular aspects.
Mr. LUNGREN. I will consider that, yes, sir.
Chairman SENSENBRENNER. Does the gentleman yield back?
The question is on agreeing to the amendment offered by the gentleman from California, Mr. Lungren. Those in favor will say aye? Opposed, no?
The ayes appear to have it. The ayes have it. The amendment is agreed to.
Are there further amendments? The gentleman from New York, Mr. Nadler.
Mr. NADLER. Thank you, Mr. Chairman. I call up amendment--Nadler amendment 001.XML.
Chairman SENSENBRENNER. The clerk will report the amendment.
The CLERK. Amendment to H.R. 3199, offered by Mr. Nadler. Section A. Strike section (b) of section 8 and insert the following----
Mr. NADLER. I think you have the wrong amendment--oh, no, I'm sorry. You're right.
Chairman SENSENBRENNER. The clerk will continue to report.
The CLERK. (b) Applications for orders. Subsection (b) of section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is amended--(1) in paragraph (1), by striking `and' at the end; (2) in paragraph (2), by striking the period at the end and inserting `; and'; and (3) by adding at the end the following----
Mr. CHABOT. Mr. Chairman, I'd ask unanimous consent that the amendment be considered as read.
Chairman SENSENBRENNER. Without objection. The gentleman--without objection, so ordered.
[The amendment of Mr. Nadler follows:]
Chairman SENSENBRENNER. The gentleman from New York is recognized for 5 minutes.
Mr. NADLER. Thank you. Mr. Chairman, this amendment amends Section 215 in three ways: Section 215 authorizes the FBI to get a secret order for any document or anything, as long as the FBI says it is relevant to a terrorist investigation. The FBI would go to a--would obtain an order from a secret FISA court to obtain a broad array of highly personal records, such as those held by hotels, libraries, doctors, and schools, or any other, quote, tangible things. They can do this without probable cause in domestic intelligence investigations to protect against terrorism or spying.
Under Section 215, this power can be used against literally anyone, even if the person is not suspected of any wrongdoing and is completely unconnected to terrorism, espionage, or other criminal activity. Section 215 in effect allows the FBI to conduct fishing expeditions against any American citizen innocent of anything.
This amendment would amend Section 215 in three ways: It would restore a standard of individualized suspicion, saying that you could get an order if you have--if you can show specific and articulable facts leading you to believe that this person is an agent of a foreign power or a terrorist.
Second, it allows the recipient of a Section 215 order to challenge the order in court. This is a common-sense protection that is sorely lacking in the current law.
Now, the recipient, not the target--this isn't good enough, but we can't do the target. Remember, the recipient could be the Internet service provider or the library. And the Internet service provider may be perfectly happy to provide the records of some subscriber. But at least this gives them the ability to go to court when they get the order if they think it proper. It doesn't give the target of the order the ability to go to court. He doesn't know about it. But the recipient, if they wish, can challenge it in court.
And, thirdly, it gives the recipient the ability to petition the court to set aside the non-disclosure requirement. Remember, you're not allowed to disclose that you got this order. And this would enable the recipient not only to petition the court to oppose the order, but to petition the court, if it granted the order, to set aside the non-disclosure requirements if it is--unless it is shown that some adverse result will come from disclosure. In other words, they could go to court and say let us tell the target or the public that you gave us this order and that we complied with it afterwards, unless someone can--unless the FBI can make a showing that disclosure of this would have some adverse effect.
The Chairman's bill does allow for a limited version of judicial review of Section 215, but that review is very narrow. It would require the recipient to file the claim for review in a specialized court which would only meet in Washington. If you were residing or your place of business was anywhere in the country other than Washington, this would be highly disadvantageous and maybe impossible, depending upon the expense. This amendment would say you could go to court and petition the court in any Federal--not just in Washington, D.C.
I think that allowing a standard of individualized suspicion that you say you can only get this information if you say--if you can show to the court specific and articulable facts why you believe that this fellow is a terrorist or an agent of a foreign power, allowing the recipient to challenge the order in court and allowing the recipient to ask the court in its discretion to waive the non-disclosure requirement afterward are reasonable amendments which balance the liberty interests that we all have with the security interests that we all have, too.
I urge the adoption of the amendment and I yield back.
Chairman SENSENBRENNER. The gentleman from California, Mr. Lungren.
Mr. LUNGREN. Mr. Chairman, I rise in opposition to the amendment.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. LUNGREN. Mr. Chairman, when you look at this amendment, it is obvious that the standard proposed here is much more rigorous than the relevance standard under which Federal grand juries and ordinary criminal investigations can subpoena the same records. This particular amendment would prevent the FISA court from issuing an order under Section 215 unless the Government provides specific and articulable facts giving reasons to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.
As I say, this is a higher standard. The standard would, in my judgment, hinder the Government from using a Section 215 order to develop evidence at the early stages of an investigation when such an order is most useful.
Consider an example where investigators are tracking down a known al Qaeda operative who's having dinner with three people who split the check four ways and each uses a credit card. While law enforcement could demonstrate that this information is relevant to an ongoing investigation, they would not be able to demonstrate sufficient and articulable facts that those individuals are agents of a foreign power.
One of the things that we have tried to understand here is that this is in the area of attempting to deal with activities before they expand into what would be known as a criminal act. This is in the nature of trying to stop terrorists before they act, not in the nature of a regular criminal investigation which oftentimes is begun when you start to examine the crime scene, develop the forensic evidence, and then try and prove your case. This is a far different situation, and it strikes, I believe, precisely at when a 215 order is most useful. Raising this standard above relevance and requiring specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power would significantly, therefore, reduce the utility of Section 215.
Also, with the--I guess it's the--it's either in the middle of the gentleman's amendment or towards the end, where he talks about allowing this to be challenged in either a U.S. district court or in the FISA court, Section 215 orders are issued by the FISA court, and any motion to set aside or amend the order I would argue should be directed to the issuing court. It is the FISA court that is better equipped than district courts to handle sensitive classified information at issue in terrorism cases.
So let us remember why we have this section. This section is specifically to deal with the new reality that we have facing us, and that is terrorism, with respect to transnational organizations as well as a lone wolf, but primarily transnational organizations. And that's why we need the section as it is. I understand the gentleman's desire to try and raise this standard to specific and articulable facts, giving reason, as the words he has. But I believe this much more rigorous standard beyond the relevance standard would be destructive to the purposes of Section 215.
Mr. BERMAN. Would the gentleman yield?
Mr. LUNGREN. I'd be happy to yield.
Mr. BERMAN. I thank the gentleman for yielding. Is the gentleman's objection to the first part of the amendment an objection to the requirement of specific and articulable facts or that it is limited to a suspect--a suspected agent of a foreign power, a suspected terrorist?
Mr. LUNGREN. I would suggest that it's in both--both sections. You know, I think you need the relevance standard. There was an argument about whether or not there should be a relevance standard. I don't think there's any doubt there ought to be a relevance standard. It is in this bill as an articulated standard. One of the questions we had at the hearings at the very beginning was shouldn't there be some relevance requirement. The response we heard from the Justice Department was that's the practice, that's what we require, that's what the courts require.
So what the Chairman of the Committee has done is put that relevance standard in here.
Mr. BERMAN. I appreciate----
Mr. LUNGREN. I believe that's sufficient.
Mr. BERMAN. I appreciate that, but let me just--I mean, the gentleman cited a hypothetical, which I have some sympathy for. I mean, you do want--to the extent you're using these, they're to go early and gather information.
Mr. LUNGREN. Yes.
Mr. BERMAN. But you talked about people who had associated----
Mr. LUNGREN. Right.
Mr. BERMAN- with someone who was suspected of being an agent of a foreign power.
Mr. LUNGREN. Right.
Mr. BERMAN. I'm just wondering if--is there something a little--something that is more--more specific than just a simple relevance standard but is not so inflexible to keep you from, for instance, subpoenaing--getting--searching and getting a hold of the records, whatever they are, of Mohammed Atta's roommate----
Chairman SENSENBRENNER. The gentleman's time has expired.
Mr. BERMAN. I'd ask unanimous consent for one additional minute.
Chairman SENSENBRENNER. Without objection.
Mr. BERMAN. I just throw out the possibility that there's something between what you think is appropriate, the relevance standard, based on the hypothetical you cited, and a number of other hypotheticals which could allow this FISA warrant or subpoena to be--to be utilized and not be limited simply to someone for which there are specific and articulable facts is an agent of a foreign power.
Mr. LUNGREN. If the gentleman would allow me to respond to that, the standard proposed here is really the relevance standard under which Federal grand juries in normal circumstances operate. What the gentleman's amendment suggests is that we go above that to specific and articulable facts. Between the two, it seemed to me the standard that is well recognized has been utilized in the grand jury circumstance would be the appropriate one, that the system understands, that the prosecutors understand, that the courts understand, and that, in fact, has been used. And I thought that was the subject of the inquiry we had during the hearings, which was the concern people had that we didn't have any standard, we didn't have a relevance standard.
And so in speaking with the gentlemen and women on the other side and with the Chairman, it seemed to me, as I talked with the Chairman and the staff, that a relevance standard articulated specifically was sufficient for what we needed.
Mr. BERMAN. Well, I will perhaps pursue this later on.
Chairman SENSENBRENNER. The gentleman's time has expired.
Mr. CONYERS. Mr. Chairman?
Chairman SENSENBRENNER. The gentleman from Michigan, Mr. Conyers.
Mr. CONYERS. Mr. Chairman, I----
Chairman SENSENBRENNER. Recognized for 5 minutes.
Mr. CONYERS. I want to find out if this is correct, and I'd like to make sure that the gentleman from New York, Mr. Nadler, is following this. Section 215 broadens significantly who such orders can be used against, and herein lies the problem. Records prior to the PATRIOT Act could only be sought if the Government showed that the person whose records are sought is a foreign power or an agent of a foreign power. Now the Government need only show that the records are sought for a, quote, authorized investigation, unquote. And I ask the gentleman from New York: Is that a part of the problem that we have with the 215 as it presently----
Mr. NADLER. Well, yet, the--yes, 215 has been expanded so that not only are we relaxing the standard, but we're relaxing the--against whom it--against whom it can be issued and for what it can be issued. So it becomes a roving fishing expedition generally, which is why narrowing the standard to articulable facts, which was the standard for all these other things before, is what we're trying to do.
Mr. LUNGREN. Would the gentleman yield on that point, Mr. Conyers?
Mr. CONYERS. I'd be happy to yield.
Mr. LUNGREN. See, here's the concern, and it goes to the--to the scenario that the gentleman from California, Mr. Berman, had brought up.
It's my understanding that if investigators were to learn that someone lived with Mohammed Atta prior to the September 11 attacks but knew nothing else about the individual, investigators, reasonable investigators I think would want to find out more about the individual. They'd want to find out about his credit, his bank, his travel, his phone records. And under the specific and articulable facts standard, the investigators would not be able to request this information using Section 215.
Mr. NADLER. Would the gentleman yield?
Mr. LUNGREN. Yes.
Mr. NADLER. Would the gentleman yield?
Mr. LUNGREN. Well, it's not my time.
Mr. CONYERS. I yield.
Chairman SENSENBRENNER. The time belongs to the gentleman from Michigan.
Mr. CONYERS. I yield.
Mr. NADLER. Thank you. Well, Mr. Lungren, I think that if someone was a roommate of Mohammed Atta, that would be a specific and articulable fact connecting him to an agent of a foreign power.
Why? Because Mohammed Atta----
Mr. LUNGREN. If the gentleman would yield, it's my understanding, speaking with--speaking with representatives of the Justice Department, in fact, that would not----
Mr. NADLER. I'm sorry, say that----
Mr. LUNGREN. But they would have to show a relevance standard, but that falls short of specific and articulable facts. The specific and articulable facts standard is too high.
Now, I will have to tell you, I am relying on those who have pursued cases such as this, and the information I have is that that is too high a hurdle. And, again, I would just repeat, when we went into this, the whole argument we had when we had the hearing--I can recall it--was don't you believe, Representative of the Justice Department, we need to have a relevance standard? Would you object to a relevance standard? And the response was, no, in fact, that's how we proceed. We----
Mr. CONYERS. All right. I'd like to yield to the gentleman from California.
Mr. BERMAN. I think your point of limiting it to the agent of a foreign power, that has meaning to me, and the problem--the problem with that. I still think there is--you keep citing hypotheticals that involve an association with a suspected agent of a foreign power, and then say in order to do that, let's just have a relevance standard.
This isn't a typical search warrant. This is a FISA search warrant. And I still think--I guess I still think there is a middle ground here that provides the Department with the flexibility to use FISA in these cases, but that is a little tighter than just a simple relevance standard, but not as limiting as the person has to be a suspected agent of a foreign power. And I just--I just want to harp on that because I may want to come back to that.
I mean, I will vote for the gentleman's amendment because I'm unhappy simply with the relevance standard, but I think the right place to land on this is somewhere between the two.
Mr. CONYERS. And so do I. I hope this discussion has supported the Nadler amendment, and I return the time.
Chairman SENSENBRENNER. The time of the gentleman----
Mr. NADLER. Would the gentleman yield for a moment?
Chairman SENSENBRENNER. The time of the gentleman has expired.
Mr. DELAHUNT. Mr. Chairman?
Chairman SENSENBRENNER. The gentleman from Massachusetts, Mr. Delahunt.
Mr. DELAHUNT. Yeah, I think I'd like to pose a question to Mr. Lungren in terms of the other two aspects of the Nadler amendment relative to opportunity to challenge and disclosure--or elimination of the gag rule after a hearing, because I think what I find particularly interesting is that Mr. Nadler reaches a conclusion that being a roommate of Mohammed Atta is an articulable fact. And your--and I have the same memory. The statement from the representative of the Department of Justice that would not constitute an articulable fact says to me that there is a role here, a more--a significant role for judicial review than currently exists. If either Mr. Nadler or Mr. Lungren would want to comment.
Mr. LUNGREN. I don't--I mean, if the gentleman is talking about going beyond the FISA court? Is that the suggestion of the gentleman?
Mr. DELAHUNT. No.
Mr. LUNGREN. Because that's the review that takes place now.
Mr. BERMAN. Would the gentleman yield?
Mr. DELAHUNT. I'll yield to the gentleman from California.
Mr. BERMAN. Here's the problem. You equate this with a grand jury investigation, but those are not secret warrants. Someone has a right to challenge them. It is the combination of this secret warrant which the bill now will allow the person who is required to deliver the records to learn about. I don't understand exactly what that means, the person who gets the warrant can't disclose it. If the person who gets the warrant isn't the person who can produce the records, somebody's going to have to learn about it anyway. It's--but since the object of this warrant, the target of this warrant is never going to know about it, the notion of requiring something more than the standard you'd have for a grand jury is real.
At the same time, I think people who have--where you can provide specific and articulable facts that someone is the target who was associated with the suspected agent of a foreign power, I think the Justice Department should have FISA warrants available to get those records in this fashion, and that's--I think that's the whole point, is you can't just simply put this off as, oh, this is like a grand jury investigation, because a grand jury investigation, those warrants aren't secret and the target of it can challenge the warrant, and there's a very established procedure to raise with the judiciary in a public way, the question of whether they're--the warrant was overbroad.
Here we're not going to have that for very understandable reasons, so let's give the FISA court some--a little bit more specificity than simply a broad claim of relevance to make its judgment about whether or not to issue the warrant.
Mr. DELAHUNT. Reclaiming my time, I think the point that Mr. Berman is taking is the availability of a motion to quash exists in terms of a criminal investigation, whereas it does not exist in this particular case.
Mr. LUNGREN. Would the gentleman yield on that?
Mr. DELAHUNT. I'll yield.
Mr. LUNGREN. I would cite page 7, starting at line 16 of the bill.
Mr. DELAHUNT. Okay.
Mr. LUNGREN. Which says that a person receiving an order to produce any tangible thing under this section may challenge the legality of that order by filing a petition in the special panel established by the bill. That's a special panel under----
Mr. NADLER. Would the gentleman yield?
Mr. LUNGREN- the FISA court, and then one would have, if I'm not mistaken, the court of review shall immediately provide for the record a written statement, and the petition of the individual involved can go directly to the Supreme Court under seal. That's a new provision.
Mr. DELAHUNT. I understand that. Reclaiming my time, however, what we're talking about is the--it's the ISP, not the target of the investigation. With that, I yield to the gentleman from New York.
Mr. NADLER. Thank you.
Mr. Lungren, the fact is that as Mr. Berman said, here the target of the investigation never hears about this. In a grand--you can't simply analogize it to a grand jury situation. In the grand jury situation, the target is served--knows about it. He can make the motion to quash. He can make the motion to limit the scope of the production--of the order. In this situation, he doesn't know about it. The ISP, who is the--who has the records, or perhaps the library or whoever else, or the travel agency or the credit card company, they get the subpoena, the target doesn't. The target never gets the opportunity to quash, number one.
Chairman SENSENBRENNER. The gentleman's time has expired.
Mr. NADLER. I ask unanimous consent for an additional 2 minutes on this.
Chairman SENSENBRENNER. Without objection, the gentleman from Massachusetts will be given an additional 2 minutes.
Mr. DELAHUNT. I yield. I continue to yield to the gentleman from New York.
Mr. NADLER. Thank you. So it is necessary to limit it somewhat.
Now, I believe that in the situation that you've stated before--and maybe--that if you can--if a known terrorist, a known agent of al Qaeda is having lunch and splitting the credit cards with two other guys, that's enough--that's an articulable fact to connect those two guys with him and, therefore, to justify under this standard. But--that's an articulable fact connecting him to a foreign power, because if a foreign power--al Qaeda is considered a foreign power.
But going further than that--but, again, I would be open to--to some intermediate standard in this, say a simple standard of relevance, where you can--where you can get virtually anything and the target knows nothing about it and can't move to quash or to limit is not sufficient. And I would also say in response to what Mr. Lungren said before, the second part of the amendment, it simply allows you to go in and allows the recipient of the order, the ISP or the library or the credit card company, to oppose the order in a Federal court, not just a FISA court. Yes, the FISA court is a good court to do that, but the Federal court can also do things in secret. And a Federal court is just as able as a FISA court to weigh the interests here, but a Federal court has the advantage of not being only in Washington, D.C. If you're a local library or a local car rental company in California, it's very difficult for you to go to Washington to move in court to oppose the order.
Mr. DELAHUNT. Reclaiming my time, I'd pose to Mr. Lungren the question that was just--the observation and put it in the form of a question made by the gentleman from New York, whether he would have an objection to that aspect of this particular amendment, the right to challenge in either the FISA or--obviously in an in-camera proceeding in a Federal district court.
Mr. LUNGREN. Well, before I respond--or in trying to respond to that, I would just say I'm confused by some of the comments that were made----
Chairman SENSENBRENNER. Without objection, the gentleman will be given an additional 2 minutes.
Mr. LUNGREN. Suggesting that a grand jury subpoena is in all or most circumstances disclosed to an individual whose records may be a subject of the subpoena. There are non-disclosure orders given often with respect to those things, and people are not aware of what goes on in the grand jury. So I'm trying to figure out----
Mr. DELAHUNT. Right, but my response, reclaiming my time, would be that that--under those particular circumstances, there is judicial intervention and a non-disclosure order is issued by a court in a traditional Title III criminal investigation. That is not the case here. What we have is this automatic gag order that is evoked in the legislation.
With that, I continue to yield to the gentleman from New York.
Mr. NADLER. I think I've said what I wanted to say. This has three sections. Again, if the specific and articulable facts--and, again, this may show why we should have had a hearing specifically on the--on the draft. If that's too high, maybe we should find some other standard intermediate, because a simple standard of relevance under these subject--under these circumstances is too broad a fishing expedition. And, again, we should allow the recipient of the order to go into any Federal court in camera if the court--well, it would have to be in camera. And don't forget the third part of the amendment, which says that you can challenge the non-disclosure part of it, too.
In the interest of not having 50 amendments, I put all three of them together. I would be willing to separate if someone----
Chairman SENSENBRENNER. The time of the gentleman from Massachusetts has once again expired. The question is on agreeing to the amendment offered by the gentleman from New York, Mr. Nadler. Those in favor will say aye. Opposed, no?
The noes appear to have it.
Mr. NADLER. Mr. Chairman, I ask for the ayes and nays.
Chairman SENSENBRENNER. A rollcall is requested and will be ordered. Those in favor of the Nadler amendment will as your names are called answer aye, those opposed, no, and the clerk will call the roll.
The CLERK. Mr. Hyde?
Mr. HYDE. No.
The CLERK. Mr. Hyde, no. Mr. Coble?
Mr. COBLE. No.
The CLERK. Mr. Coble, no. Mr. Smith?
Mr. SMITH. No.
The CLERK. Mr. Smith, no. Mr. Gallegly?
Mr. GALLEGLY. No.
The CLERK. Mr. Gallegly, no. Mr. Goodlatte?
Mr. GOODLATTE. No.
The CLERK. Mr. Goodlatte, no. Mr. Chabot?
Mr. CHABOT. No.
The CLERK. Mr. Chabot, no. Mr. Lungren?
Mr. LUNGREN. No.
The CLERK. Mr. Lungren, no. Mr. Jenkins?
[No response.]
The CLERK. Mr. Cannon?
Mr. CANNON. No.
The CLERK. Mr. Cannon, no. Mr. Bachus?
[No response.]
The CLERK. Mr. Inglis?
Mr. INGLIS. No.
The CLERK. Mr. Inglis, no. Mr. Hostettler?
Mr. HOSTETTLER. No.
The CLERK. Mr. Hostettler, no. Mr. Green?
Mr. GREEN. No.
The CLERK. Mr. Green, no. Mr. Keller?
Mr. KELLER. No.
The CLERK. Mr. Keller, no. Mr. Issa?
Mr. ISSA. No.
The CLERK. Mr. Issa, no. Mr. Flake?
Mr. FLAKE. No.
The CLERK. Mr. Flake, no. Mr. Pence?
Mr. PENCE. No.
The CLERK. Mr. Pence, no. Mr. Forbes?
Mr. FORBES. No.
The CLERK. Mr. Forbes, no. Mr. King?
Mr. KING. No.
The CLERK. Mr. King, no. Mr. Feeney?
Mr. FEENEY. No.
The CLERK. Mr. Feeney, no. Mr. Franks?
Mr. FRANKS. No.
The CLERK. Mr. Franks, no. Mr. Gohmert?
Mr. GOHMERT. No.
The CLERK. Mr. Gohmert, no. Mr. Conyers?
Mr. CONYERS. I vote aye.
The CLERK. Mr. Conyers, aye. Mr. Berman?
Mr. BERMAN. Aye.
The CLERK. Mr. Berman, aye. Mr. Boucher?
[No response.]
The CLERK. Mr. Nadler?
Mr. NADLER. Aye.
The CLERK. Mr. Nadler, aye. Mr. Scott?
Mr. SCOTT. Aye.
The CLERK. Mr. Scott, aye. Mr. Watt?
Mr. WATT. Aye.
The CLERK. Mr. Watt, aye. Ms. Lofgren?
Ms. LOFGREN. No.
The CLERK. Ms. Lofgren, no. Ms. Jackson Lee?
[No response.]
The CLERK. Ms. Waters?
Ms. WATERS. Aye.
The CLERK. Ms. Waters, aye. Mr. Meehan?
[No response.]
The CLERK. Mr. Delahunt?
Mr. DELAHUNT. Aye.
The CLERK. Mr. Delahunt, aye. Mr. Wexler?
[No response.]
The CLERK. Mr. Weiner?
Mr. WEINER. Aye.
The CLERK. Mr. Weiner, aye. Mr. Schiff?
Mr. SCHIFF. No.
The CLERK. Mr. Schiff, no. Ms. Sanchez?
Ms. SANCHEZ. Aye.
The CLERK. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. VAN HOLLEN. Aye.
The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. WASSERMAN SCHULTZ. Aye.
The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman SENSENBRENNER. No.
The CLERK. Mr. Chairman, no.
Chairman SENSENBRENNER. Members in the chamber who wish to cast or change their votes? The gentleman from Virginia, Mr. Boucher.
Mr. BOUCHER. Aye.
The CLERK. Mr. Boucher, aye.
Chairman SENSENBRENNER. Further members in the chamber who wish to cast or change their votes? If not, the clerk will report.
The CLERK. Mr. Chairman, there are 12 ayes and 23 noes.
Chairman SENSENBRENNER. And the amendment is not agreed to.
Are there further amendments? For what purpose does the gentleman from Arizona seek recognition?
Mr. FLAKE. I have an amendment at the desk.
Chairman SENSENBRENNER. The clerk will report the amendment.
Mr. FLAKE. Thank you, Mr. Chairman.
Chairman SENSENBRENNER. The clerk will report the amendment.
The CLERK. Amendment to H.R. 3199, offered by Mr. Flake. In Section 501(d) of the Foreign Intelligence Surveillance Act of 1978, as proposed to be amended by Section 8(c), strike `in response to' each place it appears and insert `with respect to.'
[The amendment of Mr. Flake follows:]
Chairman SENSENBRENNER. The gentleman from Arizona is recognized for 5 minutes.
Mr. FLAKE. Thank you, Mr. Chairman. My amendment simply strikes the words `in response to' under 215 in the bill and adds the words `with respect to.' This amendment would further clarify that a person can disclose to an attorney the receipt of a 215 order to not only respond but to challenge the order. While I don't believe that it's the purpose of this legislation to deny consultation to challenge, I believe that the concerns raised by Section 215 merit more specificity in the bill. Thus, this amendment makes it clear that a person who has received a 215 order may disclose that information to an attorney not just to respond to the order but to challenge the order.
This clarification provides additional protections for librarians, bookstore and small business owners to be able to have a clear, viable, legal recourse when faced with a 215 request. It seems clear that when we're talking about possibly allowing the Government to access important and sensitive records, we need to make sure that people's rights are explicitly protected in the law. I urge my colleagues to accept the amendment.
Chairman SENSENBRENNER. Does the gentleman yield back?
Mr. FLAKE. I yield back.
Chairman SENSENBRENNER. The question is on agreeing to the amendment offered by the gentleman from Arizona, Mr. Flake. Those in favor will say aye. Opposed, no?
The ayes appear to have it. The ayes have it, and the amendment is agreed to.
Are there further amendments? Are there further amendments? The gentleman from Virginia, Mr. Scott.
Mr. SCOTT. I have an amendment at the desk, number 4.
Chairman SENSENBRENNER. The clerk will report Scott amendment number 4.
The CLERK. Amendment to H.R. 3199, offered by Mr. Scott of Virginia. Add at the end the following: Section. Limitation on authority to delay notice of search warrants. Section 3103(a) of Title 18, United States Code, is amended (1) in subsection (b), (A), in paragraph (1), by striking `may have an adverse result as defined in Section 2705' and inserting `will endanger the life or physical safety of an individual, result in flight from prosecution or the intimidation of a potential witness, result in the destruction or tampering with the evidence sought under the warrant, or seriously jeopardize or delay an investigation of international or domestic terrorism,'; and (b)----
Mr. SCOTT. Mr. Chairman, I ask unanimous consent that the reading be waived.
Chairman SENSENBRENNER. Without objection, so ordered.
[The amendment of Mr. Scott follows:]
Chairman SENSENBRENNER. And the gentleman is recognized for 5 minutes.
Mr. SCOTT. Mr. Chairman, this amendment eliminates a wide open catch-all for sneak-and-peek which says you can get a sneak-and-peek warrant if the notification would seriously jeopardize the investigation, which is any investigation, or unduly delay a trial, any trial. And it also limits the investigation and delay to terrorism cases.
What we're constantly told is the justification for the sneak-and-peek extraordinary powers is that the Government has to invade our privacy and spread information all over town to protect us from terrorism. Yet we find that the vast majority of the delayed notice cases do not involve terrorism cases at all, but just ordinary street crime.
The amendment also places some reasonable time limit over oversights and how long a notice can be delayed and how that delay can be extended. With such invasive powers, restrictions, and oversight--in restrictions, oversight is crucial. There's no real remedy or serious disincentive for a mistake or other unwarranted access to someone's privacy in these sneak-and-peek warrants. So it's crucial that you have some kind of review and oversight mechanisms.
One of the things it does, for example, is requires the notice after 7 days, or you can extend that in 30-day increments for as long as you want. But you have to show cause for a continued reason to delay. We've been told that some of these delayed notification indefinitely without end, and there's no way ever to get notice. I think you need to continue after so many years. I think at some point notice should be given that your house was searched. That's the normal process, and I hope you'd adopt the amendment.
Ms. LOFGREN. Would the gentleman yield?
Mr. SCOTT. I yield.
Ms. LOFGREN. I commend the gentleman for his amendment, and I'd like to point out that this is a good reason why we have a sunset clause. What's in the bill was written in haste. What the gentleman has written by amendment is tightly drawn and very thoughtful and a good example of why the sunset really is important, and I thank the gentleman for yielding.
Mr. SCOTT. Thank you. I yield back, Mr. Chairman.
Chairman SENSENBRENNER. The gentleman from Arizona, Mr. Flake.
Mr. FLAKE. Thank you, Mr. Chairman.
I appreciate the concerns that Mr. Scott has, particularly with regard to a reasonable period, and I am, in fact, drafting an amendment that I hope to offer on the floor that will deal with that aspect. And so I do have the same concerns, but I think 7 calendar days is probably too short. And so I would love to work with the gentleman from Virginia on the floor amendment, if I can.
Mr. SCOTT. Would the gentleman----
Mr. FLAKE. I yield back----
Mr. SCOTT. Would the gentleman yield?
Mr. FLAKE. If I haven't yielded back, I would yield.
Mr. SCOTT. What time period did you have in your amendment that you'll be considering?
Mr. FLAKE. I'm still working with others on that.
Mr. SCOTT. And if you'll continue to yield, I'd point out that the 7-day period is a presumption that you can delay it 7 days, but you can get it extended in 30-day increments forever, so long as you can show good cause.
Mr. FLAKE. I will have a similar provision in my bill, a reasonable----
Mr. SCOTT. Well, with that, Mr. Chairman, I think I'd like to work with the gentleman from Arizona, and I'll withdraw the amendment at this point.
Chairman SENSENBRENNER. The amendment is withdrawn.
Are there further amendments? The gentlewoman from California, Ms. Waters, for what purpose do you seek recognition?
Ms. WATERS. Mr. Chairman, I have an amendment at the desk.
Chairman SENSENBRENNER. The clerk will report the amendment.
The CLERK. Amendment to H.R. 3199, offered by Ms. Waters of California. Add at the end the following: Section--National Security Letters. A national security letter shall not be issued to a health insurance company under any of the provisions of law amended by Section 505 of the Uniting--Uniting and Strengthening America by providing appropriate tools required to intercept and obstruct terrorism, US PATRIOT Act of 2001.
[The amendment of Ms. Waters follows:]
Chairman SENSENBRENNER. The gentlewoman from California is recognized for 5 minutes.
Ms. WATERS. Thank you very much, Mr. Chairman.
My amendment would prohibit Section 205, National Security--National Security Letters, from being applied to help insurance companies. Mr. Chairman, as it stands, the Government can issue secret national security letters to help insurance companies without any judicial review or approval. Therefore, health insurance providers can be compelled to produce highly private and personal medical information without any court review. And the target of the national security letter would never be notified that such confidential information had been produced.
Mr. Chairman, we must be concerned and even ask how do medical records pertain to terrorism investigations. What kind of information will this lend to the investigations? There are no clear answers to these questions. Records that are so highly personal and that on their face do not seem to bear any significance to terrorism investigations should be subject to judicial review so that the Government will be required to prove to a judge why such confidential information would be important to such an investigation.
Mr. Chairman, in a criminal investigation, the Government can only obtain such personal records through the issuance of a search warrant. However, the Government must first prove that there is probable cause that a crime has been or will be committed.
Mr. Chairman, there is no reason why the Government should be allowed to demand the production of such personal private records without any judicial review or notice to the target. And though my--through my very special amendment, checks and balances can be injected into the production of our confidential medical records.
I just think it needs no further explanation. I think that the average individual would just be opposed to allowing their medical records to be accessed without judicial review and without any notice at all at any time to the target of the so-called investigation. And I would simply ask for an aye vote and reserve the balance of my time.
Chairman SENSENBRENNER. The gentleman from California, Mr. Lungren.
Mr. LUNGREN. I rise in opposition to the amendment.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. LUNGREN. The question was posed, Why would health records ever be relevant in a terrorism investigation and why would you need a national security letter for investigation? Well, let's see. Anthrax, dealing with other biological or chemical agents. Someone might be treated for that to gain immunities to that such that when they are dealing with those particular contaminants they may not be deleteriously affected.
So I think one of the things we have to keep in mind is what is the context of this law. This law is in response to the terrorist attacks that we suffered on 9/11. The 9/11 Commission specifically said the greatest complaint against the legislative and executive branch of the Federal Government was that we failed in a lack of creativity, a lack of imagination, in other words, thinking within the box instead of outside the box. So I am not as--I am not put at ease by suggesting that I know all of the potential attempts that terrorists might make to attack us.
Recently, I, along with other members of the Homeland Security Committee, had an opportunity to go down and do a day's review at the Center for Disease Control, CDC, which in many ways is responsible for our response to potential attacks such as those I've mentioned. If that is as great a concern as was expressed to us on our review down there, it seems to me for us to create a total exemption here for health records because we can't anticipate where they might be relevant is a step that I don't think we want to take.
Mr. GOHMERT. Would the gentleman yield?
Mr. LUNGREN. I'd be happy to yield to the gentleman from Texas.
Mr. GOHMERT. Yes, if I might add, as a judge, we constantly saw people and these criminals, terrorists that want to hurt other people deal with dangerous elements. They are often injured in trying to prepare things to injure others. And these health records could be in the right situations--and I saw those as a judge--helpful in determining have they been working with these dangerous elements and components that would be used later. They could be very helpful.
I yield back.
Mr. SCHIFF. Will the gentleman yield?
Mr. LUNGREN. Yes.
Mr. SCHIFF. I appreciate the gentleman yielding, and, you know, I think that you make a number of good points. But I want to ask you one question, and that is, the use of the national security letter which has, I think, the least number of safeguards applied to it, because there is no court review, there is no going before a grand jury. And I guess my question is: Under what circumstances is it necessary to use the extraordinary remedy of a national security letter as opposed to going to the FISA court for this information or going to the grand jury for this information where there are greater checks? When would it be necessary to use the national security letter where there is really no oversight?
Mr. LUNGREN. I am sorry. I was----
Mr. SCHIFF. Let me try again.
Mr. LUNGREN. I apologize. I'm not showing disrespect to the gentleman.
Mr. SCHIFF. And my question is not rhetorical. I generally would like an answer. And that is, I think that you make a good point that in an anthrax investigation or some other biological kind of investigation, that you may need these records. My question though is there are several methods of getting them. In a criminal investigation you can go through the grand jury where there's a check. In the FISA Court you need court permission to get it where there's a check. With the national security letter, there is the least checks and balances.
And my question is, why do we need to use the national security letter in this context? What kind of circumstances would require us to use the extraordinary remedy of a national security letter as opposed to the more traditional approach of going to the grand jury or going to a FISA court?
Mr. LUNGREN. Well, it's my understanding that these are preliminary investigations before you have probable cause. These are investigations that have not arisen to the level of a criminal investigation, so you're not going to be doing a grand jury investigation. They are by their very nature go to the question of national security, and I guess the question the gentleman is asking is why do we have these at all?
I am not the expert in that. I would just say I would not support us creating an exemption for them in the--for health records for the very reasons I gave.
Mr. SCHIFF. Will the gentleman yield again?
Chairman SENSENBRENNER. The gentleman's time has expired. Without objection the gentleman will be given an additional minute.
Mr. SCHIFF. I appreciate what you're saying, but if you're saying that there isn't probable cause so you can't get a grand jury subpoena, and there's no foreign agent or foreign power involved, so you can't go to the FISA court, then what do you have as the basis for getting this very personal private record, something not involving foreign power and something less than probable cause? To get something that personal like a medical record, I think there should be a stronger basis than that. And there may very well be a good argument, but I just haven't heard it yet today, and I'm--if somebody else on the other side of the aisle can answer that question, I would be delighted to know.
Mr. ISSA. If the gentleman would yield?
Mr. LUNGREN. Yes, I'd be happy to yield.
Mr. ISSA. I might remind the gentleman from California that in 2001 when we had an anthrax actual event here, we did not know whether it was foreign power, and if--and I don't know if it was done--if there was an evaluation of people's health records to find out if somebody showed the symptoms where they might have either been a victim or in fact a perpetrator, that that would have been broad, it would have had no probable cause against them, and to the extent that people didn't have an enzyme or some other indication, nothing further would have happened. It would have been the classic example where national security was at stake, thousands of people might have been checked in order to be eliminated or to be included, and no further action was taken.
To me, the anthrax, not scare, but events that we lived through would be a good example.
Mr. SCHIFF. Would the gentleman yield?
Chairman SENSENBRENNER. The gentleman's time is again expired.
Mr. SCHIFF. Mr. Chairman, I move to strike the last word.
Chairman SENSENBRENNER. The gentleman from California is recognized for 5 minutes.
Mr. SCHIFF. Two points on that. One is--and I'd offer my colleague from California--do you know whether a national security letter was ever issued in the anthrax investigation? My guess is they probably used the traditional remedies of grand jury subpoenas. And No. 2, there's not a grand jury in the country that would turn down a subpoena in an anthrax investigation of that nature.
So, again, there may be very good reasons why we need a national security letter to get health records, but I'd like to know what they are before I have to vote on this, and I still am not quite hearing it. I yield back.
Mr. DELAHUNT. Would my friend yield?
Mr. SCHIFF. I'd be happy to yield to my colleague from Massachusetts.
Mr. DELAHUNT. I understand the concerns about just simply a blanket exemption that would deny the Government the opportunity to examine health records, but I think the point that the gentleman is making by inference is that there are no standards whatsoever as a result of the PATRIOT Act. It's my understanding that prior to the passage of the PATRIOT Act, specific and articulable facts given reason to believe the records pertain to an agent of a foreign power was the standard. That, I dare say, given the experience that we've had, given the hearings that we've conducted, ought to be reinserted as part of the issuance of national security letters. Give us a standard. That's what we're talking about here.
And if any of my colleagues on the other side of the aisle think that that is too high a standard, I would like to hear them offer a rationale, because in the real world that is simply not a very high standard, but it does invoke a oversight, if you will, as opposed simply to allow the FBI, based on an assertion, to issue a NSL that no one is aware of, and, you know, maybe it requires a little more work. But this isn't about conveniencing Government. It certainly, I don't think, would warrant any delay. A delay would be an impediment. This is about privacy rights, about individual liberties. This is not balancing with national security concerns, but it's not a matter of convenience for the Department of Justice. And I think that's what our focus has to remain during the course of our deliberations on the reauthorization of the PATRIOT Act.
Ms. LOFGREN. Mr. Chairman?
Mr. DELAHUNT. I'll yield to the gentlelady from California.
Ms. LOFGREN. I would just note that we have some options here. One is really what the gentleman has said, which is to set out standards that we agree are reasonable for the use of these powers by the Government or to provide--three are certain elements entitled to enhance privacy, and to fall back on ordinary means to obtain such records. I don't know if anyone is going to offer later an amendment relating to library records or bookstore records, but the ability of people to read what they want, to have their health care records respected is something that means a lot.
Now, I'm going to support this amendment because if this amendment passes, there are still plenty of ways for prosecutors to obtain these records if they can make a case that they're necessary. So I would yield to the gentlelady from California further on that point.
Ms. WATERS. I appreciate that. And I think the discussion that we've had helps to illuminate why there's such concern about what we do in renewing the PATRIOT Act. This Committee, on PATRIOT Act I, acted in a most responsible way, and we came together to produce the PATRIOT Act, and we took out a lot of the problems that were originally identified with the PATRIOT Act because Americans simply said, we want you public policymakers to protect us from terrorism, but we do not want you to destroy all of our civil liberties. And the's really the national discussion about the PATRIOT Act. Can we produce good public policy that will help protect us from terrorism, at the same time not throw all of our civil liberties out of the window. And this is a prime example of that.
Americans do not want national security letters that would allow the Government to simply have access too all of our medical and health records without showing probable cause. We have in law the means by which this can be done.
Chairman SENSENBRENNER. The gentleman's time has expired, and without objection will be given an additional minute.
Ms. WATERS. Thank you very much, Mr. Chairman.
This can be done with judicial review. And I'm simply saying that we use what we have in existing law to obtain those records if we can go and show probable cause--and I think any judge would support that. I don't know why we have to throw that out the window and have open access to these private and personal records without that kind of review.
So I would simply ask my colleagues to support this amendment. I think it is reasonable. I think it is the right thing to do, and I think this is what Americans expect of us.
Chairman SENSENBRENNER. The time of the gentleman has expired.
The question is on agreeing to the amendment offered by the gentlewoman from California, Ms. Waters. Those in favor will say aye.
Opposed, no.
The ayes appear to have it.
Mr. GOODLATTE. rollcall.
Chairman SENSENBRENNER. rollcall is requested by the gentleman from North Carolina. Those in favor of the Waters amendment will, as your names are called, answer aye; those opposed, no, and the clerk will call the roll.
The CLERK. Mr. Hyde?
[No response.]
The CLERK. Mr. Coble?
Mr. COBLE. No.
The CLERK. Mr. Coble, no. Mr. Smith?
Mr. SMITH. No.
The CLERK. Mr. Smith, no. Mr. Gallegly?
Mr. GALLEGLY. No.
The CLERK. Mr. Gallegly, no. Mr. Goodlatte?
Mr. GOODLATTE. No.
The CLERK. Mr. Goodlatte, no. Mr. Chabot?
Mr. CHABOT. No.
The CLERK. Mr. Chabot, no. Mr. Lungren?
Mr. LUNGREN. No.
The CLERK. Mr. Lungren, no. Mr. Jenkins?
Mr. JENKINS. No.
The CLERK. Mr. Jenkins, no. Mr. Cannon?
Mr. CANNON. No.
The CLERK. Mr. Cannon, no. Mr. Bachus?
[No response.]
The CLERK. Mr. Inglis?
Mr. INGLIS. No.
The CLERK. Mr. Inglis, no. Mr. Hostettler?
Mr. HOSTETTLER. No.
The CLERK. Mr. Hostettler, no. Mr. Green?
Mr. GREEN. No.
The CLERK. Mr. Green, no. Mr. Keller?
Mr. KELLER. No.
The CLERK. Mr. Keller, no. Mr. Issa?
Mr. ISSA. No.
The CLERK. Mr. Issa, no. Mr. Flake?
Mr. FLAKE. No.
The CLERK. Mr. Flake, no. Mr. Pence?
Mr. PENCE. No.
The CLERK. Mr. Pence, no. Mr. Forbes?
Mr. FORBES. No.
The CLERK. Mr. Forbes, no. Mr. King?
Mr. KING. No.
The CLERK. Mr. King, no. Mr. Feeney?
Mr. FEENEY. No.
The CLERK. Mr. Feeney, no. Mr. Franks?
Mr. FRANKS. No.
The CLERK. Mr. Franks, no. Mr. Gohmert?
Mr. GOHMERT. No.
The CLERK. Mr. Gohmert, no. Mr. Conyers?
Mr. CONYERS. Aye.
The CLERK. Mr. Conyers, aye. Mr. Berman?
Mr. BERMAN. Aye.
The CLERK. Mr. Berman, aye. Mr. Boucher?
Mr. BOUCHER. Aye.
The CLERK. Mr. Boucher, aye. Mr. Nadler?
Mr. NADLER. Aye.
The CLERK. Mr. Nadler, aye. Mr. Scott?
Mr. SCOTT. Aye.
The CLERK. Mr. Scott, aye. Mr. Watt?
Mr. WATT. Aye.
The CLERK. Mr. Watt, aye. Ms. Lofgren?
Ms. LOFGREN. Aye.
The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The CLERK. Ms. Waters?
Ms. WATERS. Aye.
The CLERK. Ms. Waters, aye. Mr. Meehan?
[No response.]
The CLERK. Mr. Delahunt?
Mr. DELAHUNT. Aye.
The CLERK. Mr. Delahunt, aye. Mr. Wexler?
Mr. WEXLER. Aye.
The CLERK. Mr. Wexler, aye. Mr. Weiner?
Mr. WEINER. Aye.
The CLERK. Mr. Weiner, aye. Mr. Schiff?
Mr. SCHIFF. Aye.
The CLERK. Mr. Schiff, aye. Ms. Sanchez?
Ms. SANCHEZ. Aye.
The CLERK. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. VAN HOLLEN. Aye.
The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. WASSERMAN SCHULTZ. No.
The CLERK. Ms. Wasserman Schultz, no. Mr. Chairman?
Chairman SENSENBRENNER. No.
The CLERK. Mr. Chairman, no.
Chairman SENSENBRENNER. Members who wish to cast or change their vote? Gentleman from Illinois, Mr. Hyde?
Mr. HYDE. No.
The CLERK. Mr. Hyde, no.
Chairman SENSENBRENNER. Further members who wish to cast or change their vote?
[No response.]
Chairman SENSENBRENNER. If not, the clerk will report.
The CLERK. Mr. Chairman, there are 14 ayes and 23 noes.
Chairman SENSENBRENNER. And the amendment is not agreed to.
Are three further amendments?
Mr. ISSA. Mr. Chairman?
Chairman SENSENBRENNER. The gentleman from California, Mr. Issa.
Mr. ISSA. Mr. Chairman, I have an amendment at the desk.
Chairman SENSENBRENNER. The clerk will report the amendment.
The CLERK. Amendment to H.R. 3199 offered by Mr. Issa. At the appropriate place in the bill insert the following new section:
Section - Roving Surveillance Authority Under the Foreign Intelligence Surveillance Act of 1978.
(a) Inclusion of specific facts in application. Section 105(c)(2)(b) of the Foreign Intelligence Surveillance Act of 1978 (50 USC 105(c)(2)(B), as amended by Section 206 of the USA PATRIOT Act is amended by striking----
Chairman SENSENBRENNER. Without objection the amendment is considered as read, and the gentleman from California will be recognized for 5 minutes.
[The amendment of Mr. Issa follows:]
Mr. ISSA. Thank you, Mr. Chairman. On both sides of the aisle I think that we all remember, those of us who were here, how important it was to modernize the definition of a wiretap, that in fact this section was created because the use of cellular phones, and particularly disposing of cellular phones on as often as a daily basis, had made the conventional wiretap unusable. In this procedure we felt in October 2001, that we were entering a new phase, one that would need oversight.
Today as part of our oversight during the sunset reconsideration, I offer this amendment which deals with the one most vexing issue, which is, are we giving people the ability to go on jumping from phone to phone beyond the original intent of a roving wiretap? To that extent this amendment will require that the intelligence investigators notify the FISA Court within 10 days each time it initiates surveillance on a new communication facility pursuant to the FISA--I have a terrible time with that, FISA, yeah, thank you, FISA as in Issa--roving wiretap.
Mr. Chairman, I can see that we all understand that these kinds of wiretaps can go on for months or years, and commonly do, and they may stay with one cellular phone for months on end. However, if somebody is disposing of their wiretap every single day, every 10 days, under my amendment, we would be back in informing the court that there was an expansion. This would prevent what many have said would be the bugging of all of Los Angeles. Just the opposite, this will give the court constant oversight on what might be a very often basis, but I think appropriately so to meet people's concerns, and I would ask on both sides of the aisle, all of us who worked on the original legislation, to vote for this perfecting amendment.
And with that, I yield.
Chairman SENSENBRENNER. The question is on agreeing to the amendment offered by the gentleman from California, Mr. Issa. Those in favor will say aye.
Opposed, no.
The ayes appear to have it. The ayes have it.
Mr. ISSA. I would ask a recorded vote.
Chairman SENSENBRENNER. Recorded vote is requested. Those in favor of the Issa amendment will, as your names are called, answer aye, those opposed, no, and the clerk will call the roll.
The CLERK. Mr. Hyde?
[No response.]
The CLERK. Mr. Coble?
Mr. COBLE. Aye.
The CLERK. Mr. Coble, aye. Mr. Smith?
[No response.]
The CLERK. Mr. Gallegly?
Mr. GALLEGLY. Aye.
The CLERK. Mr. Gallegly, aye. Mr. Goodlatte?
Mr. GOODLATTE. Aye.
The CLERK. Mr. Goodlatte, aye. Mr. Chabot?
Mr. CHABOT. Aye.
The CLERK. Mr. Chabot, aye. Mr. Lungren?
Mr. LUNGREN. Aye.
The CLERK. Mr. Lungren, aye. Mr. Jenkins?
Mr. JENKINS. Aye.
The CLERK. Mr. Jenkins, aye. Mr. Cannon?
Mr. CANNON. Aye.
The CLERK. Mr. Cannon, aye. Mr. Bachus?
[No response.]
The CLERK. Mr. Inglis?
Mr. INGLIS. Aye.
The CLERK. Mr. Inglis, aye. Mr. Hostettler?
Mr. HOSTETTLER. Aye.
The CLERK. Mr. Hostettler, aye. Mr. Green?
Mr. GREEN. Aye.
The CLERK. Mr. Green, aye. Mr. Keller?
Mr. KELLER. Aye.
The CLERK. Mr. Keller, aye. Mr. Issa?
Mr. ISSA. Aye.
The CLERK. Mr. Issa, aye. Mr. Flake?
Mr. FLAKE. Aye.
The CLERK. Mr. Flake, aye. Mr. Pence?
Mr. PENCE. Aye.
The CLERK. Mr. Pence, aye. Mr. Forbes?
Mr. FORBES. Aye.
The CLERK. Mr. Forbes, aye. Mr. King?
Mr. KING. Aye.
The CLERK. Mr. King, aye. Mr. Feeney?
Mr. FEENEY. Aye.
The CLERK. Mr. Feeney, aye. Mr. Franks?
Mr. FRANKS. Aye.
The CLERK. Mr. Franks, aye. Mr. Gohmert?
Mr. GOHMERT. Aye.
The CLERK. Mr. Gohmert, aye. Mr. Conyers?
Mr. CONYERS. Aye.
The CLERK. Mr. Conyers, aye. Mr. Berman?
[No response.]
The CLERK. Mr. Boucher?
Mr. BERMAN. Berman is aye.
The CLERK. Mr. Berman, aye. Mr. Boucher?
[No response.]
The CLERK. Mr. Nadler?
Mr. NADLER. Aye.
The CLERK. Mr. Nadler, aye. Mr. Scott?
Mr. SCOTT. Aye.
The CLERK. Mr. Scott, aye. Mr. Watt?
Mr. WATT. Aye.
The CLERK. Mr. Watt, aye. Ms. Lofgren?
Ms. LOFGREN. Aye.
The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The CLERK. Ms. Waters?
Ms. WATERS. Aye.
The CLERK. Ms. Waters, aye. Mr. Meehan?
[No response.]
The CLERK. Mr. Delahunt?
[No response.]
The CLERK. Mr. Wexler?
Mr. WEXLER. Aye.
The CLERK. Mr. Wexler, aye. Mr. Weiner?
Mr. WEINER. Aye.
The CLERK. Mr. Weiner, aye. Mr. Schiff?
Mr. SCHIFF. Aye.
The CLERK. Mr. Schiff, aye. Ms. Sanchez?
Ms. SANCHEZ. Aye.
The CLERK. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. VAN HOLLEN. Aye.
The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. WASSERMAN SCHULTZ. Aye.
The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman SENSENBRENNER. Aye.
The CLERK. Mr. Chairman, aye.
Chairman SENSENBRENNER. Further members who wish to cast or change their votes?
[No response.]
Chairman SENSENBRENNER. If not, the clerk will report.
Gentleman from Massachusetts, Mr. Delahunt.
Mr. DELAHUNT. How am I recorded?
The CLERK. Mr. Chairman, Mr. Delahunt is not recorded.
Mr. DELAHUNT. Aye.
The CLERK. Mr. Delahunt, aye.
Chairman SENSENBRENNER. The clerk will try again to report.
The CLERK. Mr. Chairman, there are 34 ayes and no noes.
Chairman SENSENBRENNER. And the amendment is agreed to.
Are there further amendments? The gentleman from California, Mr. Lungren?
Mr. LUNGREN. Mr. Chairman, I have an amendment at the desk.
Chairman SENSENBRENNER. The clerk will report the amendment.
The CLERK. Amendment to H.R. 3199 offered by Mr. Lungren of California.
Add at the end the following:
Sec. 9 Sunset for Certain Provisions.
Sections 206 and 215 of the USA PATRIOT Act and the amendments made by those sections, shall cease to have effect on December 31, 2015.
Chairman SENSENBRENNER. The gentleman from California is recognized for 5 minutes.
[The amendment of Mr. Lungren follows:]
Mr. LUNGREN. Mr. Chairman, this is a fairly simple amendment. It would put a 10-year sunset on Sections 205 and 215 of the PATRIOT Act. I believe that the sunset provisions in the current law have given us an opportunity, a prod, if you will, to look at certain sections of the PATRIOT Act in a way that is probably more intense and deeper than we would otherwise have done. Having attended, I believe, all of the Subcommittee hearings on those provisions, as well as the full Committee hearings, I'm satisfied that there is no evidence of abuse in the substance of the law, nor abuse of civil liberties in the application of the law by the Justice Department during the time that these laws have been in effect.
Nonetheless, it seems to me that the two most controversial provisions which were sunsetted in the original law are Sections 206, the roving wiretap, and Section 215 which deals with business records. For that reason, I thought that it would be appropriate for us to have a sunset.
As a supporter of the bill it's my belief that sunsetting these two provisions which have drawn a disproportionate amount of attention, will in fact serve as an assurance to those inside and outside of this body of our continued diligence.
My amendment is not in anyway, I would repeat, intended to be a criticism of the implementation of the Act by the administration. It is, however, an effort to show the American people that we will remain vigilant in reviewing these particular provisions. Even some members have said to me that they support provisions such as these so long as there is a terrorist threat. None have suggested to me that this terrorist threat is going to go away within the next several years. As a matter of fact, the President has recently suggested that this is a generational fight because it is a generational threat that we face.
For that reason, it is my believe that a sunset in the year 2015 is appropriate under the circumstances. It will contribute to the continuation of vigorous oversight by this Committee, as well as careful and conscientious implementation of this legislation by this administration and the administrations to follow. I do not in any way wish to suggest that this Committee has been derelict in its duty. As a matter of fact, I would congratulate this Committee for the work that it has done in providing vigorous oversight.
But it is my belief that from time to time Congress has not been as vigilant as it should be in oversight of a number of different matters, and that having this with respect to what I believe are the two most controversial aspects of this law, will be of benefit.
I might say that there are some who have suggested that by even offering such amendment, it will be interpreted as criticism of the underlying law on my part, or criticism of the administration, or criticism of the current Congress. This amendment is not offered for that purpose. Rather it is in some ways a tribute to the work that has been done by the administration and by this Congress, specifically this Committee, in dealing with the very difficult and delicate balance that we must strike, and that is to prevent those who would wish to destroy us and what we stand for by acts of terror in ensuring that we do not tear up the Constitution in the process of defending ourselves and those we represent.
With that, I yield back the balance of my time.
Mr. SCOTT. Mr. Chairman?
Chairman SENSENBRENNER. The gentleman from Virginia, Mr. Scott?
Mr. SCOTT. Mr. Chairman, I have an amendment to the--second degree amendment to the amendment.
Chairman SENSENBRENNER. The clerk will report the second degree amendment.
Mr. SCOTT. No. 7, it's No. 7.
The CLERK. An amendment to the Lungren amendment to H.R. 3199 offered by Mr. Scott.
Strike `2015' and insert `2009.'
Chairman SENSENBRENNER. The gentleman from Virginia is recognized for 5 minutes.
[The amendment of Mr. Scott follows:]
Mr. SCOTT. Thank you, Mr. Chairman. Mr. Chairman, I support the direction the amendment is going in. This second degree amendment will change the 10-year sunset to a 4-year sunset. The 10-year sunset would allow this to go through without review, clean through the rest of this administration and the next term of the--the term of the President elected in 2008 and almost through the term of the person elected in 2012. There are many questions that we have.
As it's been pointed out, we have rushed through the first passage of the PATRIOT Act, and sometimes these sunsets help you get answers to questions that you may ask. For example, Mr. Chairman, I've just been handed a letter dated July 11th, 2 days ago, it was sent 2 days ago, received today, from the Attorney General responding to a question that was asked at a hearing on April 6th, and now because of--I imagine because of this hearing, we're finally getting an answer to a question. We'll have questions like many of the amendments will address, but I think it's important that we, because of the significant intrusion in civil liberties, that we keep an eye on this, and have the power of the sunset to require answers to questions. I therefore would ask you to accept a 4-year sunset rather than the 10-year sunset in the underlying----
Mr. CONYERS. Would the gentleman yield?
Mr. SCOTT. I yield to the gentleman from Michigan.
Mr. CONYERS. I want to thank you for doing this, Mr. Scott, because 10 years is way too long. I mean every decade we take a look at this, it will be new Congresses, new Presidents. There could be a huge pile building up in the course of a decade. And I think this amendment is made real by your amendment to the amendment. I support it with great enthusiasm.
Mr. SCOTT. Thank you.
Reclaiming my time, Mr. Chairman, as the Ranking Member has pointed out, you can go through the next President--through this presidential term and another entire presidential term without this thing coming up for renewal, and we would think that the next President elected in 2008 ought to have the responsibility to respond to some questions we may ask. We don't know who that President may be.
I yield back.
Chairman SENSENBRENNER. Does the gentleman from Virginia yield back?
Mr. SCOTT. I yield back.
Chairman SENSENBRENNER. The gentleman from Virginia, Mr. Goodlatte.
Mr. GOODLATTE. Thank you, Mr. Chairman. Mr. Chairman, I want to commend the gentleman from California for offering the underlying amendment, and I strongly support it. There are a number of reasons for having sunset provisions, and I have, and many others have supported them in a number of areas, and I would like to see them in other areas of our legislation that we pass because it provides for more accountability on a part of any administration, and because it gives us the opportunity to have it automatically come back to us at some point in time to make adjustments. Times change, circumstances change, and when that occurs, it's appropriate for the Congress to have the initiative to act to make those changes and improvements.
I do not agree with the substitute or the secondary amendment offered by the gentleman from Virginia. We've just been through a period where we've had a 4-year sunset, and during that time there have been uncovered no abuses on the part of the Justice Department of the provisions that we passed in the original PATRIOT Act, and I see no reason to have this on such a short leash. This will give us an opportunity to put it over a longer period of time. It will help to establish the precedent that we should impose sunsets like this in other areas where we pass legislation. It will empower the Congress in doing so because it will improve our oversight authority, and it will improve our opportunity to make changes and enhancement as time goes by, but to do it every 4 years is simply too quickly, and given the fact that we are in a war on terror that is going to go on for a long time, I think this is an appropriate period of time for us to have a sunset provision.
And I urge my colleagues to reject the secondary amendment and to support the amendment offered by the gentleman from California.
Chairman SENSENBRENNER. The gentlewoman from California, Ms. Waters.
Ms. WATERS. Thank you very much, Mr. Chairman.
I rise in support of Mr. Scott's amendment. I think we all agree that there should be sunset provisions. The gentleman just argued that this is about making sure we have sunset provisions. He won't find an argument, I don't think, with any of us on this side of the aisle about sunset provisions. It's just a matter of how many years are we talking about?
This business of fighting terrorism continues to be an evolving situation, where we're all learning more about the various ways in which we could be attacked, and the various ways in which we could provide more security, and I still think we have a long way to go as we look at some of our transportation systems and our ports, and I still think that there is public policy to be developed that could be very helpful in fighting terrorist as it relates to the way that we bring in goods and products from other countries in particular.
So I think it is important for us to have good oversight. Good oversight does not mean that you have a sunset provision that's so far out that you don't do the reviews and make the adjustments that you need to make. Good oversight means that you're constantly looking, you're constantly reviewing, and I think 4 years is a reasonable amount of time. And so I would reject the original amendment by my colleague from California, and support the alternative amendment by Mr. Scott because I think it makes more sense and it gives us the possibility of giving the kind of oversight to this very special era of terrorism----
Mr. CONYERS. Would the gentlelady yield?
Ms. WATERS. I yield to the gentleman from Michigan.
Mr. CONYERS. Thank you. I heard it mentioned that this might set a bad precedent if we start sunsetting too much.
Well, we have 16 provisions that are sunsetted in the first PATRIOT Act. This is the first new one that I've heard, and this would just--this is very critical. I mean if we're really serious about reviewing this, we can review it. Nobody will be hurt if very few are revealed. And it also should be remembers that many times we can't even figure out where an abuse has occurred because of the general vagueness of the law as it exists right now. So I wouldn't want anybody to take to heart that there have never been any provisions of abuse because we don't know about it. We don't know about any because we don't have the process to find out about any. And so I support the gentlelady from California and the gentleman from Virginia.
Mr. LUNGREN. Mr. Chairman?
Chairman SENSENBRENNER. The time belongs to the gentlewoman from California. Do you yield back?
Ms. WATERS. I yield back.
Chairman SENSENBRENNER. The gentleman from California, Mr. Lungren.
Mr. LUNGREN. Mr. Chairman, I reluctantly rise to oppose Mr. Scott's amendment to my amendment because I would so much like to see a Scott-Lungren amendment at sometime before I leave this House.
I appreciate that there are differences here, and I understand how we're trying to strike a balance here. I think the point made by Mr. Goodlatte is a good one. We've just gone through a 4-year sunset, and I would have to say we have looked diligently and have found no record of abuses.
It is difficult to figure out what the date is. I'm reminded that I have been gone so long that I'm now back here when we're going to be considering a reauthorization of the Voting Rights Act. People ought to understand the Voting Rights Act sunsets. I was back here in the '80's, it was either '82 or '84 when we last--'82. So we have a sunset that goes 24 or 5 years on that law. And yet there are changed circumstances as the gentlelady from California mentioned. There are new things.
And folks should recall there was a real question when the Ranking Member of the full Committee, when Mr. Hyde, when the Chairman of the full Committee and I were all serving back here in the '80's, there was a question whether the Voting Rights Act was going to be reauthorized because of changed circumstances of those States which feel the application of the Voting Rights Act, and yet we made a decision that it was appropriate. And then when we did that, we gave it this 20-some year life with a sunset.
So the suggestion that a 10-year sunset is irrelevant or somehow meaningless, I would reject based on the experience that I've seen with another major law that we have dealt with.
And by the way, I commend the Chairman for his speech before the NAACP this last week in which he mentioned that we expect to deal with the reauthorization of the Voting Rights Act even a year early. So it shows we don't have to wait until the sunset. We always have the oversight.
I was trying to strike a balance here, and also I'm trying to be practical. I'm trying to have a provision that will pass and remain law when we get to the floor.
I yield back the balance of my time.
Mr. WATT. Mr. Chairman?
Chairman SENSENBRENNER. The gentleman from North Carolina, Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman. I move to strike the last word.
Chairman SENSENBRENNER. The gentleman's recognized for 5 minutes.
Mr. WATT. I thank the Chairman, and I'm rising in support of Mr. Scott's second degree amendment. But I think it would be remiss of me to do that without applauding first the original amendment by Mr. Lungren. Perhaps the most disturbing thing to me about the Chairman's proposed mark from which we are working today was that it had no sunset provisions in it, and one of the things that I had said to my constituents after we passed the original PATRIOT Act, was that one of the real important things that we were able to insert into that bill was a sunset provisions. And I reminded them that throughout our history when we have had dramatic incidents occur, quite often the legislative body has overreacted or has taken steps that needed to occur for a temporary period of time, but should not be the law henceforth now and forever.
I would like not to accept the underlying proposition that terrorism will be with us forever, that forever we will have to compromise our basic--some basic rights that I believe the PATRIOT Act has compromised. And I honestly think we ought to be reviewing this bill and its provisions on a regular ongoing basis. And I'm sure there's nothing in the fact that there is no sunset that prohibits us from doing that or would be nothing that would prohibit us from going back and amending the PATRIOT Act at any point. But legislative and political realities and time realities as they are, suggest that we simply are not going to do that in the absence of a sunset provision.
If 4 years from now circumstances have changed for the better in some respects, I would be tremendously happy. If 4 years from now circumstances have changed for the worse, technology may have advanced in some ways that would dictate a change in some of the provisions of the PATRIOT Act--technology is advancing so rapidly that we don't know what's on the horizon 4 years from now. And the longer we delay forcing ourselves to review any kind of encroachments, impediments, stepping on the toes of the freedoms that our country has held so dear over the years, I think the more of a disservice we do to our country, and the more we really say to the terrorists that we have given in to you by compromising on some of the things that our Nation stands for and that our world should be aspiring to stand for.
So I know this is a judgment, this is not a knock on what Mr. Lungren has tried to do. I actually applaud what he has done and I'm delighted that we are going to have some kind of sunset in whatever goes out of this Committee--at least it looks that way at this point--but given a choice between a short or a longer one, I would certainly favor the shorter sunset. And I yield back the balance of my time.
Chairman SENSENBRENNER. The gentleman's time has expired. The Chair moves to strike the last word and recognizes himself for 5 minutes.
I think all of the members and the public know that the sunset that is currently contained in the PATRIOT Act was something that I insisted upon when the PATRIOT Act was considered immediately after September 11. And I did so because whenever we talk about expanding law enforcement powers and potential encroachment upon civil liberties, there is a very subjective line that is drawn that nobody will know whether it was done correctly or not until there has been some experience under the new law.
I guess what puzzles me a bit is that the people who are arguing for a shorter sunset now were the ones that were arguing for a longer sunset 4 years go.
Be that as it may, we have had almost 4 years of experience under the PATRIOT Act. There has been no section of the 16 sections of the PATRIOT Act where law enforcement powers were expanded that has been declared unconstitutional by a Federal court. There also have been no lawsuits brought under the Frank amendment that provides a civil remedy with statutory damages for Americans whose civil rights were violated under the PATRIOT Act. And the Justice Department Inspector General has found no civil rights violations under the PATRIOT Act, and he was given that specific authority to investigate and reach those conclusions as a part of those protections that this Committee wrote in the PATRIOT Act in September and October 2001.
Having said that, let me say that what type of oversight is done by any congressional Committee, this one or any of our other Committees, is entirely dependent upon the Committee's attitude toward oversight and specifically the attitude of the Chairman of the Committee and the Chairmen of the Subcommittees toward oversight. I think people who have seen my performance here and prior to that in the Science Committee realize that I am an oversight hawk, and I have been as much of a hawk against an administration of my own party as Chairman of this Committee as I was over NASA during the Clinton administration as Chairman of the Science Committee. Oversight was one of the constitutional responsibilities the Founders gave the Congress, and in my opinion we should be doing more of it rather than less of it.
But chairmen come and chairmen go, and I am term limited as Chairman, and 2 years from now there will be another person that will be sitting in this chair that may have a different view toward oversight.
The oversight that Mr. Conyers and I have done on the PATRIOT Act have been as a result of Mr. Conyers and my insistence that the oversight be vigorous and pointed. And we have had differences with the Justice Department and specifically former Attorney General Ashcroft to the point where I had to threaten to subpoena him in order for us to get information that this Committee needed to have in the discharge of our oversight responsibilities. I can say that in the last couple of years the responses from the Justice Department had been much better, and I comment them for that.
But again, this is my philosophy and that of Mr. Conyers toward oversight, and that may change as time goes on.
I support, reluctantly, the longer sunset provisions, and the reason I do that is because it will force a review. But let me say, I don't think we should have different strokes for different folks, saying that we should have a real short sunset on the PATRIOT Act and a real long one on the Voting Rights Act. The principle is the same. And I will support and introduce legislation for a very long period of extension of the Voting Rights Act because I think that the 25 years that was passed in 1982 worked very well.
Having a sunset as proposed by Mr. Lungren, in my opinion will get the debate on the PATRIOT Act out of the political arena, and believe me, it is in the political arena now. And having debate on the PATRIOT Act being a part of a presidential election campaign and then the new Congress immediately afterwards, this debate has not been the best in terms of dealing with the actual issues of the PATRIOT Act.
So I would ask the members of this Committee to vote against the Scott amendment for the shorter sunset, for the Lungren amendment for the longer sunset, and I would urge whomever succeeds me as Chairman of the Committee in January 2007 to be just as diligent in discharging oversight responsibilities as I believe Mr. Conyers and I have been.
Mr. WATT. Mr. Chairman, could I ask for unanimous consent for one additional minute and ask the Chairman to yield for a question?
Chairman SENSENBRENNER. Without objection, the Chair is given an additional minute. I yield to the gentleman from North Carolina.
Mr. WATT. The Chairman made a statement about somebody, some period of time ago when we were doing the original bill, opposing a shorter sunset. I wanted to make sure that we didn't leave the wrong impression here. I don't have a recollection of that on my part.
Chairman SENSENBRENNER. If I can reclaim----
Mr. WATT. Maybe you were referring to somebody else.
Chairman SENSENBRENNER. If I can reclaim my time, I can understand why he didn't have a recollection on that because the final sunset provisions were negotiated in the Speaker's office, and it was the then Democratic controlled Senate that wanted a real short sunset, and it was Mr. Conyers and I who were present in that meeting that wanted a longer one.
Mr. WATT. A longer one or a shorter one?
Chairman SENSENBRENNER. That was the difference between 3 years, 4 years and 5 years. We were for 5, they were for 3, and we split the difference.
Mr. WATT. So it wasn't as dramatic as we're talking about here today?
Ms. LOFGREN. Would the Chairman yield?
Chairman SENSENBRENNER. The Chair will ask unanimous consent for an additional minute and yield to the gentlewoman from California.
Ms. LOFGREN. I will not use an entire minute. I would just like to note for the record that during the weekend drafting session on the PATRIOT Act I recommended a 2-year statute of limitations, and I thank the gentleman for yielding.
Chairman SENSENBRENNER. Duly noted.
Mr. DELAHUNT. Mr. Chairman?
Chairman SENSENBRENNER. My time has expired.
Mr. DELAHUNT. Mr. Chairman?
Chairman SENSENBRENNER. The gentleman from Massachusetts, Mr. Delahunt.
Mr. DELAHUNT. I thank the Chairman. I would note that he makes the observation that within the provisions of the PATRIOT Act there appears to be no abuse that's been discovered by the Department of Justice. Now, one could opine that the sunset provision itself serves in some way as deterrence to abuse because there will be inevitably hearings to review the conduct. So I grant you the fact that, at least as it relates to the provisions of the PATRIOT Act, there does not appear to be any abuse that has been discovered so far.
At the same time I think we have to recognize that the Inspector General of the Department of Justice did find serious problems with the detainees being held in New York, but I don't want to digress.
And I applaud the Chairman for his aggressive oversight. I also applaud the gentleman from California. I think this is a step in the right direction. I want it as a matter of record, that my own opinion is that 2 years is perfect, and I would go so far as to sunset the entire PATRIOT Act, because as the Chairman has indicated, Chairmans come, Chairmans go, minorities come, they change, and majorities come and change. But there is a natural tension between the branches that's healthy in a democracy.
And what I found particularly revealing during the course of the hearings that were conducted by Mr. Coble with your support, obviously, was that we received a level of cooperation and collaboration from the Department of Justice that I have not experienced in my previous 9 years of service on this Committee.
I think as much as it is about the PATRIOT Act, it is also about the role of Congress in terms of the relationship with the Executive and the Judiciary, and it provides us with leverage to encourage cooperation and collaboration, because I know you, myself and other members, and not just this particular Committee, have found at times it extremely difficult to receive the kind of cooperation that ought to be forthcoming from the Executive.
I'm reminded of serving on the Government Reform Committee when there was a inquiry into the conduct of the Federal Bureau of Investigation in Boston, and the Republican Chair of that Committee, Dan Burton, as you did, had to threaten the Attorney General of the United States with a contempt citation to secure cooperation.
So I say to my colleagues on both sides--and by the way, this is not a partisan issue, this is historic and is an institutional issue. I don't think we can sunset often enough, and I think if we chart a different course in terms of the future, the sunset will serve the Congress well despite who the Chairman is. And again, I would compliment the Chair on being aggressive in terms of oversight, and I would go so far as to say before you move on, I would commend to you consideration of establishing within the Committee an additional Subcommittee to deal specifically with the issue of oversight in investigations.
It's been done under Chairman Hyde in the International Relations Committee, and I think it's overdue and it's needed.
With that I'll yield back.
Mr. SCOTT. Would the gentleman yield?
Mr. DELAHUNT. I yield to the gentleman from Virginia.
Mr. SCOTT. Thank you. I thank the gentleman for yielding.
As the gentleman from Massachusetts is pointing out, whatever success there has been with the PATRIOT Act I think is because of the sunset, not in spite of the sunset. We've had problems with the national security letters, reclassification or misclassification of some cases of terrorists, racial profiling, as the Chairman has indicated, we've had to threaten subpoenas, and clearly there's been more cooperation from the administration in those inquiries involving sections with a sunset than those involving sections without a sunset. So I would hope that we would keep a sunset that would at least require the next President of the United States to have some time during his administration where he'll have to respond to questions.
Thank you.
Chairman SENSENBRENNER. The gentleman's time has expired.
The gentleman from Arizona, Mr. Flake.
Mr. FLAKE. I just want to say in Arizona we love sunsets. I particularly like sunsets of all Government programs, but in this case I would thank the gentleman from California for offering this compromise, this 10-year sunset, and I think it's appropriate and I plan to support it.
With that I yield back.
Mr. NADLER. Mr. Chairman?
Chairman SENSENBRENNER. The gentleman from New York, Mr. Nadler.
Mr. NADLER. Thank you, Mr. Chairman. Mr. Chairman, you raised the question of comparing the sunset to the sunset of the Voting Rights Act. I think there's a difference and all sunsets are not equivalent. This sunset is dealing with very sensitive, as I've said before, as we've all said before, very sensitive powers that we're giving Government that pose potential threats to the liberty that we all hold dear.
Now, it's easy to say there have been abuses, and maybe there haven't, although there's still a lot of secrecy, and I wouldn't agree that there have been no abuses. But even if there hadn't been, doesn't mean there won't be next year under the next Chairman of this Committee, under the next President, under the next Attorney General.
Sunsets in this respect make us keep reviewing it, and that's fine. What is the danger of a sunset, that it makes us do a little more work? So what? It keeps it front and center, and this kind of thing ought to be kept front and center. The Voting Rights Act imposes certain requirements on States to make sure that their citizens get the rights they're entitled to. Should it sunset? Well, maybe, because maybe those States now have changed and don't have to have a Federal imposition on them to guarantee those rights. But worse comes to worst, so what again? They're giving the rights that ought to be given.
Here the sunset is to make sure that our citizens have liberty and rights, and we ought to have a fairly frequent sunset. I commend the gentleman from California for offering this amendment. I wish it were for more than just these two sections, and there will be amendments for sunsets for more sections before this markup is over, but 10 years is too long.
Lots of things can happen in 10 years. Why shouldn't the next President have to be concerned about--a 4-year sunset means the next President, not this one. Why shouldn't the next President have to be concerned about justifying retention of these police powers? We don't know how long the war on terror is going to go on, we don't know how it's going to be waged. We don't know if abuses are going to occur.
And a 4-year amendment, and if that amendment--and if that fails, we'll offer an amendment for a 6-year sunset--at least keeps our feet to the fire. That's what this is about, keeping our feet to the fire to keep our eye on the ball to protect the liberty of American citizens against possible abuses, and it's nothing to say we're not saying anything by this amendment or by trying to speed up this amendment by the 4-year secondary amendment, to say that the current Attorney General or the current President or the current Chairman of this Committee, or the current anybody, is doing anything right or wrong. It's simply saying that it's a useful tool to make sure that we focus on it more than once every 10 year, and frankly, the liberties of Americans are worth focusing on a lot more often than once every 10 years.
So I support the Scott secondary amendment, and I yield back.
Chairman SENSENBRENNER. The gentleman from Texas, Mr. Smith.
Mr. SMITH. Mr. Chairman, I move to strike the last word.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. SMITH. Mr. Chairman, I oppose the Scott amendment and I expect to also oppose the underlying amendment, and I want to explain why.
It's likely on the underlying amendment that I'm going to find myself in the good company of many of my colleague on the other side of the podium, though not necessarily for the same reason. They feel that the 10-year period is too long. I happen to feel that we don't need sunsets at all for the reasons that have already been stated by many others.
The PATRIOT Act has worked well. There have been no abuses. And regardless of whether there are sunsets or not, I am sure that the oversight will continue, and that can address any possible abuses that might come up.
I'd also like to note, Mr. Chairman, that it seems to me that the arguments made against the 3-year sunset could also be made against the 10-year sunset. As I say, the PATRIOT Act has been working well.
So I just wanted to state for the record that I am going to oppose both the Scott amendment and the underlying amendment as well.
I'll yield back.
Mr. WEINER. Mr. Chairman?
Chairman SENSENBRENNER. The gentleman from New York, Mr. Weiner.
Mr. WEINER. Thanks, Mr. Chairman. I have yet to really get an understanding from the sponsor of the amendment--and frankly, I don't even--from the base amendment, and frankly from you, Mr. Chairman, of what's the harm of going to 2009? I think the Chairman deserves a great deal of credit for (A) inserting the sunset, but also generally the way that we've taken on issues here.
I mean essentially what--I think in our Committee under your leadership for the first time in a very long time we did a reauthorization of the Justice Department, something that had gone on for years without being reauthorized.
Frankly, what I would say that this is, is essentially a forced reauthorization. I think it has been salutary to have the sunset provisions in because it's gotten people on both sides of the issue having a discussion about it. It's forced us to be at this point--I doubt very much if there were not sunset provisions in the original we'd be having hearings right now. And I think on both sides of the aisle concerns have been expressed about how far reaching or whether it was not far reaching enough.
I am puzzled by whether or not making it 2009 in any way weakens our chances on the floor. That's the only argument I've heard from the gentleman from California about why 2015 rather than 2009, it strikes a so-called balance. Frankly, the concerns that have been raised by opponents would be further assuaged by having a shorter sunset, not a longer sunset, that if you believe that you're trying to get votes from people who are like myself, who are kind of some parts of the bill we've got no problem with, some parts of the bill we have serious problems with. There are people on the far right and far left who expressed concerns.
If you truly want to give the tools to the Justice Department for additional time, and you don't want the bill to be defeated all together, a shorter sunset seems to be better way.
And also from the day-to-day practical prosecution of the law, I find it hard to believe that any prosecutor would say or any criminal would say, well, here's a decision I'm going to make because we've got a sunset coming up in a few years. I don't think any terrorist is going to say, all right, I'm going to hold off a little longer because we have a sunset coming up in 2009. So I'm in 2007 contemplating a crime, but I'm going to wait because I think it's going to sunset.
I mean practically speaking, that's not going to happen, and if that makes them push off their plans for terrorism, then we should have sunset every year because maybe they'll just keep putting it off and see if we don't renew it.
I guess my simple question is--and it hasn't been answered here--is what's the matter with a shorter sunset? How does it harm anyone? Why does the Justice Department mind that much? It's not an indictment of them or it's not ad argument that they've done things poorly. What it is, is that the present sunset has been a successful fulcrum, (A) to get this back before this Committee; (B) to get a full discussion of it before the country.
You know you say that there haven't been abuses. We've also found out in a lot of cases there hasn't been a great deal of use of it. That's something worth knowing as well that would have not come out, would not have had the pressure to come out were it not for a shorter sunset.
And with that, I yield the balance of my time to the gentleman from Massachusetts.
Mr. DELAHUNT. I applaud the gentleman for his, I think, insightful comments. I think we should be thinking about when this legislation comes to the floor because there are concerns there, and only has to remember some of the votes that we have witnessed that have occurred on the Floor because people have legitimate concerns.
And I dare say, this sunset, this sunset and the duration of the sunset--and it should be expanded in my opinion--is something that I think the majority of members of the House will find--will welcome.
Just to support my earlier comments about oversight and the relationship between the branches, someone just passed me a press release from Senator Collins and Senator Lieberman dated June 14, who were speaking about the need for the administration to fulfill its obligations under the National Intelligence Reform and Terrorist Prevention Act of 2004, and I'll submit this into the record.
Chairman SENSENBRENNER. Without objection.
[The press release was not available in time to be included in this report.]
Mr. DELAHUNT. They noted a series of reports, strategic plans and preliminary actions whose deadlines have come and gone. Among them, the National Transportation Strategy, the first step towards streamlining the Federal security clearance process, a number of port security strategic plans, aviation security staffing standards, a baggage screening cost-sharing plan, three reports on diplomatic initiatives to root out terrorists.
I dare say that if we do not have, as Mr. Weiner indicated, the leverage, the fulcrum, you know, even if we mandate reports--it would be interesting for me if both majority and minority staff would review the reports mandated by the PATRIOT Act and other antiterrorism statutes to see whether they've been filed.
Chairman SENSENBRENNER. The time of the gentleman from New York has expired. The question is----
Mr. SCHIFF. Mr. Chairman? Mr. Chairman, to your left.
Chairman SENSENBRENNER. The gentleman from California, Mr. Schiff.
Mr. SCHIFF. I wouldn't need to make it quick if--well, anyway.
Thank you, Mr. Chairman. Move to strike the last word.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. SCHIFF. I want to join in support of the secondary amendment, and the reason I wanted to be recognized on this--I know many others have spoken already, but I frankly think this is probably the most important amendment we're going to have today, and indeed I think one of the most important provisions that we in the original PATRIOT bill was the sunset provision that the Chairman insisted upon. And at the time I strongly supported a 2-year sunset, even a shorter leash.
My concern with that sunset being 4 years originally was that it might take us 4 years before the Committee, as a Committee, really did the kind of vigilant oversight that we should do. The PATRIOT bill was basically a bargain. It said we will give law enforcement greater power, and in exchange we will do greater oversight.
I think many of the powers of the PATRIOT bill needed to be conveyed to keep pace with changes in technology and changes in the way that terrorists operated. But much as I was concerned, I think that with the 4-year sunset the Committee as a Committee did not do oversight until 3 1/2 years into the sunset. And I appreciate what the Chairman did with the Ranking Member individually, but the Committee as a Committee, in terms of holding hearings, having witnesses, and giving each of the members a chance to participate in the oversight really didn't happen till 3, 3 1/2 years into the life of the PATRIOT bill.
And I'm afraid that if we extend this by 10 years, it will be 9 1/2 years before we go through this exercise again, and that's just too long. It's not just a function of the Chairman not being the Chairman. Most of the members of this Committee will no longer be on the Committee. Heck, most of the members of this Committee will probably no longer be in the Congress who were present when the bill passed and are present today.
To put things in context, my colleague from New York, Mr. Weiner, he'll be finishing his second term as mayor of New York when this comes up again. [Laughter.]
My 3-year-old will be a teenager, and I'm not ready for that. [Laughter.]
I'm not ready for either of those things. [Laughter.]
No, I am ready for Anthony to be mayor.
We reauthorize departments with great frequency. We reauthorize our transportation bill every 6 years. There's little risk, unless there are great abuses, that if we sunsetted this bill in another 4 years, that it wouldn't be re-extended in 4 years. I don't expect there will be abuse of the bill or dramatic abuse of the bill, and I would expect that with a 4-year sunset, the worst that will happen is that we'll be back here in 3 1/2 years, and I would hope sooner, to be looking at some of these provisions again.
So the downside--I can't even find the upside--in that it compels us as a Committee to do the oversight that we should be doing, I think, is substantial. And probably a more realistic sunset date would be the single greatest step that could be taken by the majority to outreach to the minority to have a reauthorization that enjoys very broad bipartisan support.
With that, Mr. Chairman, I yield back.
Chairman SENSENBRENNER. The question is on the Scott second degree amendment to the Lungren amendment. Those in favor will say aye? Opposed, no?
The noes appear to have it.
Mr. CONYERS. A record vote.
Chairman SENSENBRENNER. Record vote is requested and will be ordered. Those in favor of the Scott amendment to the Lungren amendment will, as your names are called, answer aye; those opposed, no. The clerk will call the roll.
The CLERK. Mr. Hyde?
[No response.]
The CLERK. Mr. Coble?
Mr. COBLE. No.
The CLERK. Mr. Coble, no. Mr. Smith?
Mr. SMITH. No.
The CLERK. Mr. Smith, no. Mr. Gallegly?
Mr. GALLEGLY. No.
The CLERK. Mr. Gallegly, no. Mr. Goodlatte?
Mr. GOODLATTE. No.
The CLERK. Mr. Goodlatte, no. Mr. Chabot?
Mr. CHABOT. No.
The CLERK. Mr. Chabot, no. Mr. Lungren?
Mr. LUNGREN. No.
The CLERK. Mr. Lungren, no. Mr. Jenkins?
Mr. JENKINS. No.
The CLERK. Mr. Jenkins, no. Mr. Cannon?
Mr. CANNON. No.
The CLERK. Mr. Cannon, no. Mr. Bachus?
[No response.]
The CLERK. Mr. Inglis?
[No response.]
The CLERK. Mr. Hostettler?
Mr. HOSTETTLER. No.
The CLERK. Mr. Hostettler, no. Mr. Green?
Mr. GREEN. No.
The CLERK. Mr. Green, no. Mr. Keller?
Mr. KELLER. No.
The CLERK. Mr. Keller, no. Mr. Issa?
Mr. ISSA. No.
The CLERK. Mr. Issa, no. Mr. Flake?
Mr. FLAKE. No.
The CLERK. Mr. Flake, no. Mr. Pence?
Mr. PENCE. No.
The CLERK. Mr. Pence, no. Mr. Forbes?
Mr. FORBES. No.
The CLERK. Mr. Forbes, no. Mr. King?
Mr. KING. No.
The CLERK. Mr. King, no. Mr. Feeney?
Mr. FEENEY. No.
The CLERK. Mr. Feeney, no. Mr. Franks?
Mr. FRANKS. No.
The CLERK. Mr. Franks, no. Mr. Gohmert?
Mr. GOHMERT. No.
The CLERK. Mr. Gohmert, no. Mr. Conyers?
Mr. CONYERS. Aye.
The CLERK. Mr. Conyers, aye. Mr. Berman?
Mr. BERMAN. Aye.
The CLERK. Mr. Berman, aye. Mr. Boucher?
[No response.]
The CLERK. Mr. Nadler?
Mr. NADLER. Aye.
The CLERK. Mr. Nadler, aye. Mr. Scott?
Mr. SCOTT. Aye.
The CLERK. Mr. Scott, aye. Mr. Watt?
Mr. WATT. Aye.
The CLERK. Mr. Watt, aye. Ms. Lofgren?
Ms. LOFGREN. Aye.
The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The CLERK. Ms. Waters?
Ms. WATERS. Aye.
The CLERK. Ms. Waters, aye. Mr. Meehan?
Mr. MEEHAN. Aye.
The CLERK. Mr. Meehan, aye. Mr. Delahunt?
Mr. DELAHUNT. Aye.
The CLERK. Mr. Delahunt, aye. Mr. Wexler?
Mr. WEXLER. Aye.
The CLERK. Mr. Wexler, aye. Mr. Weiner?
Mr. WEINER. Aye.
The CLERK. Mr. Weiner, aye. Mr. Schiff?
Mr. SCHIFF. Aye.
The CLERK. Mr. Schiff, aye. Ms. Sanchez?
Ms. SANCHEZ. Aye.
The CLERK. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. VAN HOLLEN. Aye.
The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. WASSERMAN SCHULTZ. Aye.
The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman SENSENBRENNER. No.
The CLERK. Mr. Chairman, no.
Chairman SENSENBRENNER. Further members who wish to cast or change their vote? The gentleman from South Carolina, Mr. Inglis?
Mr. INGLIS. No.
The CLERK. Mr. Inglis, no.
Chairman SENSENBRENNER. There are no further members who wish to cast or change their vote. The clerk will report.
The CLERK. Mr. Chairman, there are 15 ayes and 21 noes.
Chairman SENSENBRENNER. And the amendment is not agreed to.
The question----
Mr. NADLER. Mr. Chairman?
Chairman SENSENBRENNER. For what purpose does the gentleman from New York seek recognition?
Mr. NADLER. Mr. Chairman, I have a secondary amendment at the desk.
Chairman SENSENBRENNER. The clerk will report the amendment.
The CLERK. Mr. Chairman, I have two amendments at the desk.
Mr. NADLER. The 2011.
Chairman SENSENBRENNER. The clerk will report the amendment.
The CLERK. Second degree amendment to the Lungren amendment to H.R. 3199, offered by Mr. Nadler. Strike `2015' and insert `2011.'
[The amendment of Mr. Nadler follows:]
Chairman SENSENBRENNER. The chair is prepared to declare the Committee in recess until 2 o'clock, at which time, Mr. Nadler will be recognized for 5 minutes to explain his amendment. Members will please be prompt.
The Committee is in recess.
[Whereupon, the Committee was recessed from 12:27 p.m. to 2:07 p.m.]
Chairman SENSENBRENNER. A working quorum is present.
When the Committee recessed for lunch, pending was an amendment offered by the gentleman from California, Mr. Lungren, to which a second degree amendment by the gentleman from New York, Mr. Nadler, had been offered. We will now resume consideration of the Nadler second degree amendment, and the gentleman from New York, Mr. Nadler, is recognized for 5 minutes.
Mr. NADLER. Thank you. Thank you, Mr. Chairman.
Mr. Chairman, this amendment, this secondary amendment doesn't need too much discussion. Most of the discussion I think we can just read into the record, the discussion on the last secondary amendment for the 4-year extension. This simply says instead of a 10-year extension, as Mr. Lungren would have it--sunset, rather--it should be a 6-year sunset.
Before we broke, we had discussion on Mr. Scott's amendment for a 4-year sunset, and the majority thought that that was too fast, that 10 years was a better idea. I am compromising at 6 years.
Now, one objection--and frankly, again, just to be brief, when you are dealing with liberty and with giving Government more power, then I think 10 years is just too long. Now, it had been expressed that maybe if a 4-year extension was too short and, among other reasons, that would come into effect in 2009, it would put it into the next presidential election--well, this would not. This would be 2011. It would be the third year of the next presidential term. It doesn't get mixed up in party politics in the 2008 election.
And again, if we think these things should be sunsetted--and I certainly agree they should be--a 6-year sunset is reasonable. Over 6 years we can see what happens. And to require Congress to look at things every 6 years, things that potentially threaten people's liberties, albeit maybe we have to do it because of terrorism, is not too often to do. So I think 6 years is a reasonable amount of time, and I offer the secondary amendment to what I regard as a good amendment by Mr. Lungren.
I yield back.
Chairman SENSENBRENNER. The chair recognizes himself for 5 minutes in opposition to the amendment.
I rise in opposition to the amendment. The gentleman from New York had it half right. He was right when he said that all of the arguments that were made in favor of the Scott amendment applied to his amendment. What he omitted is that all of the arguments made against the Scott amendment also apply to this amendment. And since the Scott amendment was rejected, I think we ought to reject this----
Mr. NADLER. Would the gentleman yield for a second?
Chairman SENSENBRENNER. Absolutely.
Mr. NADLER. All the arguments but one, as I pointed out. One of the arguments against the Scott amendment was that it would put it into the 2008 presidential election because it would sunset in 2009. This does not do that. This would sunset in 2011, the third year of a presidential term, and that argument----
Chairman SENSENBRENNER. And reclaiming my time----
Mr. NADLER- is inapplicable.
Chairman SENSENBRENNER. Reclaiming my time, 2015 is the third year of a presidential term, too. And I yield back the balance of my time.
The question is on agreeing to the Nadler second degree amendment to the Lungren amendment. Those in favor will say aye? Opposed, no?
The noes appear to have it.
rollcall will be ordered. Those in favor of the Nadler amendment to the Lungren amendment will, as your names are called, answer aye; those opposed, no. And the clerk will call the roll.
The CLERK. Mr. Hyde?
[No response.]
The CLERK. Mr. Coble?
Mr. COBLE. No.
The CLERK. Mr. Coble, no. Mr. Smith?
Mr. SMITH. No.
The CLERK. Mr. Smith, no. Mr. Gallegly?
[No response.]
The CLERK. Mr. Goodlatte?
[No response.]
The CLERK. Mr. Chabot?
Mr. CHABOT. No.
The CLERK. Mr. Chabot, no. Mr. Lungren?
Mr. LUNGREN. No.
The CLERK. Mr. Lungren, no. Mr. Jenkins?
Mr. JENKINS. No.
The CLERK. Mr. Jenkins, no. Mr. Cannon?
Mr. CANNON. No.
The CLERK. Mr. Cannon, no. Mr. Bachus?
[No response.]
The CLERK. Mr. Inglis?
Mr. INGLIS. No.
The CLERK. Mr. Inglis, no. Mr. Hostettler?
Mr. HOSTETTLER. No.
The CLERK. Mr. Hostettler, no. Mr. Green?
Mr. GREEN. Pass.
The CLERK. Mr. Green, pass. Mr. Keller?
[No response.]
The CLERK. Mr. Issa?
Mr. ISSA. No.
The CLERK. Mr. Issa, no. Mr. Flake?
[No response.]
The CLERK. Mr. Pence?
[No response.]
The CLERK. Mr. Forbes?
Mr. FORBES. No.
The CLERK. Mr. Forbes, no. Mr. King?
Mr. KING. No.
The CLERK. Mr. King, no. Mr. Feeney?
Mr. FEENEY. No.
The CLERK. Mr. Feeney, no. Mr. Franks?
[No response.]
The CLERK. Mr. Gohmert?
[No response.]
The CLERK. Mr. Conyers?
Mr. CONYERS. Aye.
The CLERK. Mr. Conyers, aye. Mr. Berman?
[No response.]
The CLERK. Mr. Boucher?
[No response.]
The CLERK. Mr. Nadler?
Mr. NADLER. Aye.
The CLERK. Mr. Nadler, aye. Mr. Scott?
Mr. SCOTT. Aye.
The CLERK. Mr. Scott, aye. Mr. Watt?
Mr. WATT. Aye.
The CLERK. Mr. Watt, aye. Ms. Lofgren?
[No response.]
The CLERK. Ms. Jackson Lee?
[No response.]
The CLERK. Ms. Waters?
[No response.]
The CLERK. Mr. Meehan?
Mr. MEEHAN. Aye.
The CLERK. Mr. Meehan, aye. Mr. Delahunt?
Mr. DELAHUNT. Aye.
The CLERK. Mr. Delahunt, aye. Mr. Wexler?
[No response.]
The CLERK. Mr. Weiner?
[No response.]
The CLERK. Mr. Schiff?
Mr. SCHIFF. Aye.
The CLERK. Mr. Schiff, aye. Ms. Sanchez?
Ms. SANCHEZ. Aye.
The CLERK. Ms. Sanchez, aye. Mr. Van Hollen?
[No response.]
The CLERK. Ms. Wasserman Schultz?
[No response.]
The CLERK. Mr. Chairman?
Chairman SENSENBRENNER. No.
The CLERK. Mr. Chairman, no.
Chairman SENSENBRENNER. Members who wish to cast or change their vote? The gentleman from Illinois, Mr. Hyde?
Mr. HYDE. No.
The CLERK. Mr. Hyde, no.
Chairman SENSENBRENNER. The gentleman from California, Mr. Gallegly?
Mr. GALLEGLY. No.
The CLERK. Mr. Gallegly, no.
Chairman SENSENBRENNER. The gentleman from Virginia, Mr. Goodlatte?
Mr. GOODLATTE. No.
The CLERK. Mr. Goodlatte, no.
Chairman SENSENBRENNER. The gentleman from Texas, Mr. Gohmert?
Mr. GOHMERT. No.
The CLERK. Mr. Gohmert, no.
Chairman SENSENBRENNER. The gentleman from Wisconsin, Mr. Green?
Mr. GREEN. No.
The CLERK. Mr. Green, no.
Chairman SENSENBRENNER. Further members in the chamber who wish--The gentleman from Virginia, Mr. Boucher.
Mr. BOUCHER. Aye.
The CLERK. Mr. Boucher, aye.
Chairman SENSENBRENNER. Further members who wish to cast or change their vote? If not, the clerk will report.
The CLERK. Mr. Chairman, there are 9 ayes and 18 noes.
Chairman SENSENBRENNER. And the second degree amendment is not agreed to.
The question is on----
Mr. SCOTT. Mr. Chairman?
Chairman SENSENBRENNER. The gentleman from Virginia, Mr. Scott, for what purpose do you seek recognition?
Mr. SCOTT. Mr. Chairman, I have a unanimous consent request for a Scott-Lungren amendment.
Chairman SENSENBRENNER. The gentleman will state the request.
Mr. SCOTT. The amendment reads that the provisions shall cease to have effect on December 31, 2005--excuse me, 2015. The amendment would be to insert language `and after,' so it would read, `would cease to have effect on and after December 31, 2015.'
Chairman SENSENBRENNER. Without objection, the modification to the amendment is agreed to. Hearing none, so ordered.
The question now occurs on the Lungren amendment as modified. Those in favor will say aye? Opposed, no?
The ayes appear to have it.
Mr. SCHIFF. Mr. Chairman?
Chairman SENSENBRENNER. Does the gentleman from California wish to ask for a rollcall?
Mr. SCHIFF. No. I just had an amendment at the desk.
Chairman SENSENBRENNER. The other gentleman from California asked for a rollcall. rollcall will be ordered.
Those in favor of the Lungren amendment as modified will, as your names are called, answer aye; those opposed, no. And the clerk will call the roll.
The CLERK. Mr. Hyde?
Mr. HYDE. Aye.
The CLERK. Mr. Hyde, aye. Mr. Coble?
Mr. COBLE. Aye.
The CLERK. Mr. Coble, aye. Mr. Smith?
Mr. SMITH. No.
The CLERK. Mr. Smith, no. Mr. Gallegly?
Mr. GALLEGLY. Aye.
The CLERK. Mr. Gallegly, aye. Mr. Goodlatte?
[No response.]
The CLERK. Mr. Chabot?
Mr. CHABOT. Aye.
The CLERK. Mr. Chabot, aye. Mr. Lungren?
Mr. LUNGREN. Aye.
The CLERK. Mr. Lungren, aye. Mr. Jenkins?
Mr. JENKINS. Aye.
The CLERK. Mr. Jenkins, aye. Mr. Cannon?
Mr. CANNON. Aye.
The CLERK. Mr. Cannon, aye. Mr. Bachus?
[No response.]
The CLERK. Mr. Inglis?
Mr. INGLIS. Aye.
The CLERK. Mr. Inglis, aye. Mr. Hostettler?
[No response.]
The CLERK. Mr. Green?
Mr. GREEN. Aye.
The CLERK. Mr. Green, aye. Mr. Keller?
[No response.]
The CLERK. Mr. Issa?
Mr. ISSA. Aye.
The CLERK. Mr. Issa, aye. Mr. Flake?
[No response.]
The CLERK. Mr. Pence?
[No response.]
The CLERK. Mr. Forbes?
Mr. FORBES. Aye.
The CLERK. Mr. Forbes, aye. Mr. King?
Mr. KING. Aye.
The CLERK. Mr. King, aye. Mr. Feeney?
Mr. FEENEY. Aye.
The CLERK. Mr. Feeney, aye. Mr. Franks?
[No response.]
The CLERK. Mr. Gohmert?
Mr. GOHMERT. Aye.
The CLERK. Mr. Gohmert, aye. Mr. Conyers?
Mr. CONYERS. No.
The CLERK. Mr. Conyers, no. Mr. Berman?
[No response.]
The CLERK. Mr. Boucher?
Mr. BOUCHER. Aye.
The CLERK. Mr. Boucher, aye. Mr. Nadler?
Mr. NADLER. Aye.
The CLERK. Mr. Nadler, aye. Mr. Scott?
Mr. SCOTT. Aye.
The CLERK. Mr. Scott, aye. Mr. Watt?
Mr. WATT. Aye.
The CLERK. Mr. Watt, aye. Ms. Lofgren?
[No response.]
The CLERK. Ms. Jackson Lee?
[No response.]
The CLERK. Ms. Waters?
[No response.]
The CLERK. Mr. Meehan?
Mr. MEEHAN. Aye.
The CLERK. Mr. Meehan, aye. Mr. Delahunt?
Mr. DELAHUNT. Aye.
The CLERK. Mr. Delahunt, aye. Mr. Wexler?
[No response.]
The CLERK. Mr. Weiner?
[No response.]
The CLERK. Mr. Schiff?
Mr. SCHIFF. Aye.
The CLERK. Mr. Schiff, aye. Ms. Sanchez?
Ms. SANCHEZ. Aye.
The CLERK. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. VAN HOLLEN. Aye.
The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
[No response.]
The CLERK. Mr. Chairman?
Chairman SENSENBRENNER. Aye.
The CLERK. Mr. Chairman, aye.
Chairman SENSENBRENNER. The gentleman from Virginia, Mr. Goodlatte?
Mr. GOODLATTE. Aye.
The CLERK. Mr. Goodlatte, aye.
Chairman SENSENBRENNER. Further members in the chamber who wish to cast or change--Yes, the gentleman from Arizona, Mr. Flake?
Mr. FLAKE. Aye.
The CLERK. Mr. Flake, aye.
Chairman SENSENBRENNER. Further members in the chamber who wish to cast or change their votes? If not, the clerk will report.
The CLERK. Mr. Chairman, there are 26 ayes and 2 noes.
Chairman SENSENBRENNER. And the amendment is agreed to.
Are there further amendments?
The gentleman from California, Mr. Schiff.
Mr. SCHIFF. Mr. Chairman, I know my colleague from New York has a burning sunset amendment. I would ask to be recognized after one of my colleagues, after Mr. Nadler.
Chairman SENSENBRENNER. The chair is trying to share the wealth, but if this is not the time for the gentleman from California to partake of the wealth, for what purpose does the gentleman from New York seek recognition?
Mr. NADLER. Thank you, Mr. Chairman. I appreciate the forbearance of the gentleman from California.
Mr. Chairman, I do think--I have an amendment at the desk.
Chairman SENSENBRENNER. The clerk will report the amendment.
The CLERK. Mr. Chairman, I have three Mr. Nadler amendments.
Mr. NADLER. It says `strike section 3.' This is the one by Mr. Nadler and Mrs. Lofgren.
The CLERK. Amendment to H.R. 3199, offered by Mr. Nadler and Ms. Lofgren. Strike section 3 and insert the following: Security. 3. Sunset. Section 224 of the USA PATRIOT ACT is amended by--(1) Inserting `206' in section (a) after `205,'; (2) Inserting `215' in section (a) before `216,'; and (3) Striking `2005' and inserting `2015.'
The amendment of Mr. Nadler follows:]
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. NADLER. Thank you, Mr. Chairman.
Mr. Chairman, this amendment, which is short, is not quite self-explanatory. What it does is extend the 10-year sunset, which we have just adopted for two sections, to the other 14 sections that are currently sunsetted under the law and that under the bill in chief would be permanent. This simply says that all the reasons for the sunsets that we just passed for 10 years for the two existing sections, for these two sections, we should do for the other 14 sections that do sunset now, and instead of permanentizing them, we should sunset them after 10 years.
So I take from Mr. Lungren the 10 years and we should--all the same reasons why the two sections that we just did should be sunsetted in 10 years apply to these sections, too. They are extensions of various powers. We are to review them. This includes Section 201, Authority to Intercept Wire or Electronic Communications Relating to Terrorism; 202, Wiretaps Relating to Computer Fraud and Abuse Offenses; Section 203, Authority to Share Electronic, Wire, and Oral Interception Information with Foreign Intelligence Operations; Duration of FISA Surveillance of Non-USA Persons; Seizure of VoiceMail Messages Pursuant to Warrants; Pen Register and Trap and Trace; Interception of Computer Trespass Communications; and so forth.
All of these are basically new powers granted by the PATRIOT Act. All of them were sunsetted now; all of them, I think, should be sunsetted in 10 years for the same reasons.
And I urge the adoption of this amendment, and I yield back.
Ms. LOFGREN. Would the gentleman yield?
Mr. NADLER. Oh, yes. I do not yield back, I yield to the gentlelady from California.
Ms. LOFGREN. I will be very quick. As the cosponsor of the amendment, I won't repeat what Mr. Nadler said, but I would merely note that some of the provisions that would be covered by the amendment really are provisions that relate to technology. And it is important both for civil liberties, but also from the technological point of view, that we have a schedule for reviewing those issues. Because the technology, I guarantee you, will change, and if we don't have a set time for us to review those changes, we may end up with a consequence that we never intended. And I think that is an additional reason to support the amendment.
I thank the gentleman for yielding, and yield back.
Chairman SENSENBRENNER. Does the gentleman from New York yield back?
Mr. NADLER. Yes, I do.
Chairman SENSENBRENNER. The gentleman from California, Mr. Issa?
Mr. ISSA. Thank you, Mr. Chairman. I rise in opposition to the amendment.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. ISSA. Mr. Chairman, I know this is well-intentioned, but I would like to point out to all of my colleagues that when we did this, the PATRIOT Act, initially, one of the reasons for the sunsets was this was new. And we wanted the 4 years in which to observe what happened. We have had not only the 4 years but countless hearings. We have looked at this in detail. Mr. Lungren, appropriately, looked and said although there has been no misconduct, he would like to, and we have now passed an amendment to hold open a little bit longer, or a lot longer period on two provisions.
But I think that we fail to do our job as a Committee if we simply punt and say, well, we are going to keep it all open. And I would suggest that, if we are going to do that, then let us simply amend I think it is Section 28, and, you know, we could do everything. We could sunset the entire Homeland Security, for that matter, every 10 years.
I think there is a point of, if we work together diligently--and I promised my office to work together just as I have seen the Chairman's office working--to make sure that we have, if we have concerns, we have areas both here and, potentially, on the floor, that we reach those amendments on a bipartisan basis so that we can make sure that we don't need to simply leave something unanswered and hope for the best for the next 10 years.
I would ask my colleagues, at a minimum after this amendment, to delay any further amendments on sunsetting in favor of let's get to substantive changes that might be appropriate so that we can not have sunsetting, but rather have a law which we are confident will last for the entire decades to come.
Mr. NADLER. Would the gentleman yield?
Mr. ISSA. I would yield.
Mr. NADLER. Thank you. Now, this is, as far as I know, the last amendment on sunsetting. But I would point out that nothing in sunsetting--we don't hold it open for 10 years. That is not correct. The law is the law. This makes us come back and review it in 10 years. And certainly nothing that says review it in 10 years precludes our reviewing it in 10 minutes or 10 months or next year, as we ought to on a continuing basis.
But at the minimum, since these are police powers that have to balance carefully, we ought to at least make sure that our successors--or us, if we are still here----
Mr. ISSA. I appreciate the gentleman from New York. And I would reclaim and yield the balance of my time to the gentleman from Texas.
Mr. SMITH. I thank the gentleman from California for yielding.
Mr. Chairman, I, too, oppose this amendment, which applies to all 16 of the sunsetted provisions of the PATRIOT Act. The PATRIOT Act was a long overdue measure aimed at first closing gaping holes in the Government's ability to collect vital intelligence information on the global terrorist network, and second, protecting Americans from another attack. It was supported overwhelmingly by the American people and passed by a margin of 98-1 in the Senate and 347-66 in the House.
Even the ACLU said, in a recent press release, that `most of the voluminous PATRIOT Act is actually unobjectionable from a civil liberties point of view' and that `the law makes important changes that give law enforcement agents the tools they need to protect against terrorist attacks.'
In order to make sure that we did not overreact to the September 11 murder of over 3,000 innocent Americans by enacting legislation that went too far, we placed sunsets on some PATRIOT Act provisions. Nearly 4 years later, successes in terrorist investigations show not only that the PATRIOT Act was the right way to go, but also that the sunsets were not necessary. There has not been even one substantiated abuse of power under the PATRIOT Act, but there have been terrorist prosecutions. The sunsets should not be reinstated across the board.
The information sharing powers created by Section 218, for example, which would be sunsetted again by this amendment, were instrumental in disrupting terrorist cells in New York, Oregon, Florida, and Virginia, and in prosecuting a number of individuals tied to terrorist organizations.
The Section 212 power to authorize electronic communications service providers to disclose records to the Government if there is the threat of death or serious injury, which would be sunsetted again under this amendment, allowed investigators to prevent the bombing of a high school and allowed investigators in Texas to apprehend an individual who threatened to attack a mosque.
This amendment would have a chilling effect on current and future investigations because of the uncertainty a sunset places on the direction of an investigation. If investigators believe that they may no longer have the ability to share information, obtain roving wiretaps, or obtain certain business records, they may hesitate to pursue the investigation.
Mr. Chairman, sunsets may have had a proper place when they were enacted at the beginning of this landmark legislation in the aftermath of September 11th, but since then the effectiveness of the PATRIOT Act has been proved many times over. There should be no sunsetting of all these provisions or any sunsetting of our willingness or ability to keep America safe.
I yield back the balance of my time.
Chairman SENSENBRENNER. The gentleman's time has expired.
The question is on----
Mr. SCOTT. Mr. Chairman?
Chairman SENSENBRENNER. The gentleman from Virginia, Mr. Scott.
Mr. SCOTT. Move to strike the last word.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. SCOTT. Mr. Chairman, I agree that most of the, or at least a lot of the PATRIOT Act is in fact good law. In fact, this Committee reported a version of the PATRIOT Act unanimously. And so we felt that a lot of it could have been passed without a lot of controversy. People have said that it has worked okay. There have been misclassifications of terrorism cases and there have been problems, so when the suggestion is made that there are no problems, I don't want that comment to go without controversy. We have seen, because we have had the sunsets, we have had much better cooperation from the administration because of the sunsets. The Chairman has indicated that we had to threaten a subpoena to get the cooperation, at least on some issues, from the Attorney General.
And I would hope that we would adopt this. I think 10 years is too long, but we have already had that debate. So long as we find on reauthorization, when it comes up for reauthorization, that it is worked, there won't be any problem reauthorizing it. It just ensures it will have oversight. So I would hope that we would adopt the amendment, and I yield----
Mr. CONYERS. Would the gentleman from Virginia yield?
Mr. SCOTT. I will yield.
Mr. CONYERS. Well, I want to agree with you, because the original PATRIOT Act that was unanimously voted out had 2-year sunset provisions. Two years, not four, and certainly not 10. And so I would like to remind the Committee that our collective work product was far more carefully tailored than now.
And I couldn't agree with you more. You know, a member making a statement that there are no PATRIOT Act violations does not, unfortunately, turn it into gospel. That is just one person's view. We are putting together a paper here that shows that there were dozens and dozens of violations that have come to our attention, and probably others that we haven't found out about yet.
Mr. SCOTT. Thank you very much. And reclaiming my time, I yield to the gentleman from New York.
Mr. NADLER. Thank you. I thank the gentleman for yielding.
I just want to add that, you know, as was said a moment ago, much of the Patriot--and the ACLU said much of the PATRIOT Act is unobjectionable and is fine and uncontroversial and no one objects to it. But parts of the PATRIOT Act, especially the parts that were sunsetted, get very expanded and perhaps, in some hands and in some times and in some places, dangerous powers to police authorities. They may not have been misused; they may have been misused. Who knows in the future? They may be very necessary in the war on terrorism for now, maybe for the future. But the one thing that sunsetting says is that we should not get too comfortable with expanded police powers in this country. We should be nervous about expanded police powers in this country, because they threaten liberty. They may be necessary in an age of terrorism, but we should be nervous about them, we should be grudging about them, and we should review them. And all the sunset provision says is review those expanded police powers in 10 years. It is worth the extra time for this Committee to protect liberty.
Thank you. I yield back.
Chairman SENSENBRENNER. The question is on the amendment offered by the gentleman from New York, Mr. Nadler, and the gentlewoman from California, Ms. Lofgren.
Those in favor will say aye? Opposed, no?
The noes appear to have it. The noes have it, and the amendment is not agreed to.
Are there further amendments?
Mr. NADLER. rollcall.
Chairman SENSENBRENNER. The gentleman from New York asks for a rollcall. Those in favor of the Nadler-Lofgren amendment will, as your names are called, answer aye; those opposed, no. And the clerk will call the roll.
The CLERK. Mr. Hyde?
Mr. HYDE. No.
The CLERK. Mr. Hyde, no. Mr. Coble?
Mr. COBLE. No.
The CLERK. Mr. Coble, no. Mr. Smith?
Mr. SMITH. No.
The CLERK. Mr. Smith, no. Mr. Gallegly?
Mr. GALLEGLY. No.
The CLERK. Mr. Gallegly, no. Mr. Goodlatte?
[No response.]
The CLERK. Mr. Chabot?
[No response.]
The CLERK. Mr. Lungren?
Mr. LUNGREN. No.
The CLERK. Mr. Lungren, no. Mr. Jenkins?
Mr. JENKINS. No.
The CLERK. Mr. Jenkins, no. Mr. Cannon?
Mr. CANNON. No.
The CLERK. Mr. Cannon, no. Mr. Bachus?
[No response.]
The CLERK. Mr. Inglis?
Mr. INGLIS. No.
The CLERK. Mr. Inglis, no. Mr. Hostettler?
Mr. HOSTETTLER. No.
The CLERK. Mr. Hostettler, no. Mr. Green?
Mr. GREEN. No.
The CLERK. Mr. Green, no. Mr. Keller?
Mr. KELLER. No.
The CLERK. Mr. Keller, no. Mr. Issa?
Mr. ISSA. No.
The CLERK. Mr. Issa, no. Mr. Flake?
Mr. FLAKE. No.
The CLERK. Mr. Flake, no. Mr. Pence?
Mr. PENCE. No.
The CLERK. Mr. Pence, no. Mr. Forbes?
Mr. FORBES. No.
The CLERK. Mr. Forbes, no. Mr. King?
Mr. KING. No.
The CLERK. Mr. King, no. Mr. Feeney?
Mr. FEENEY. No.
The CLERK. Mr. Feeney, no. Mr. Franks?
Mr. FRANKS. No.
The CLERK. Mr. Franks, no. Mr. Gohmert?
Mr. GOHMERT. No.
The CLERK. Mr. Gohmert, no. Mr. Conyers?
Mr. CONYERS. Aye.
The CLERK. Mr. Conyers, aye. Mr. Berman?
Mr. BERMAN. Aye.
The CLERK. Mr. Berman, aye. Mr. Boucher?
[No response.]
The CLERK. Mr. Nadler?
Mr. NADLER. Aye.
The CLERK. Mr. Nadler, aye. Mr. Scott?
Mr. SCOTT. Aye.
The CLERK. Mr. Scott, aye. Mr. Watt?
[No response.]
The CLERK. Ms. Lofgren?
Ms. LOFGREN. Aye.
The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The CLERK. Ms. Waters?
[No response.]
The CLERK. Mr. Meehan?
Mr. MEEHAN. Aye.
The CLERK. Mr. Meehan, aye. Mr. Delahunt?
Mr. DELAHUNT. Aye.
The CLERK. Mr. Delahunt, aye. Mr. Wexler?
[No response.]
The CLERK. Mr. Weiner?
Mr. WEINER. Aye.
The CLERK. Mr. Weiner, aye. Mr. Schiff?
Mr. SCHIFF. Aye.
The CLERK. Mr. Schiff, aye. Ms. Sanchez?
Ms. SANCHEZ. Aye.
The CLERK. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. VAN HOLLEN. Aye.
The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
[No response.]
The CLERK. Mr. Chairman?
Chairman SENSENBRENNER. No.
The CLERK. Mr. Chairman, no.
Chairman SENSENBRENNER. Further members who wish to cast or change their vote? The gentleman from Ohio, Mr. Chabot?
Mr. CHABOT. No.
The CLERK. Mr. Chabot, no.
Chairman SENSENBRENNER. The gentleman from Virginia, Mr. Boucher?
Mr. BOUCHER. Aye.
The CLERK. Mr. Boucher, aye.
Chairman SENSENBRENNER. Further members who wish to cast or change their votes? If not, the clerk will report.
The CLERK. Mr. Chairman, there are 12 ayes and 21 noes.
Chairman SENSENBRENNER. The amendment is not agreed to.
Are there further amendments? The gentleman from Maryland, Mr. Van Hollen.
Mr. VAN HOLLEN. Thank you, Mr. Chairman. I have an amendment at the desk.
Chairman SENSENBRENNER. The clerk will report the amendment.
The CLERK. Amendment to H.R. 3199, offered by Mr. Van Hollen and Mr. Conyers. At the end of the bill, add the following: Section XXX. Knowing transfer of firearm to individual named in the Violent Gang and Terrorist Organization File treated as providing material support to terrorists.
Mr. VAN HOLLEN. Mr. Chairman, I ask unanimous consent that further reading of the amendment be dispensed with.
Chairman SENSENBRENNER. Without objection, so ordered.
[The amendment of Mr. Van Hollen and Mr. Conyers follows:]
Chairman SENSENBRENNER. The gentleman from Maryland is recognized for 5 minutes.
Mr. VAN HOLLEN. Thank you, Mr. Chairman. I am pleased to offer this amendment together with Mr. Conyers.
There is an existing provision in the PATRIOT Act entitled `Providing Material Support to Terrorists,' which does something I think we all agree needs to be done, which says simply that if you are somebody who is providing aid and comfort and providing material support to somebody conducting a terrorist act, then you, too, should be held accountable.
What this amendment does, very simply, it says that if you knowingly--and I want to stress this is not if you have reason to know, this is not if you speculate, that you might know--this is if you know that somebody is on the terrorist watch list and you provide that individual with firearms, like a semiautomatic weapon or other controlled weapons, that you can be held responsible for that action. And it seems to me that if we want to address the roots of the problem as we have in the existing bill, where we say that someone who provides material support to a terrorist will also be held accountable and responsible, it makes sense that if we know that somebody is on the terrorist watch list and you go out and sell them, you know, 12 AK47s, that you also should be held responsible under this provision providing material support to terrorists.
So I urge my colleagues on both sides of the aisle to adopt this amendment, and I yield to Mr. Conyers.
Mr. CONYERS. I thank my colleague for joining with me, and me joining with him, in this amendment. Terrorists' access to guns. What could be more relevant in a PATRIOT Act reauthorization? We are not talking about weapons of mass destruction, we are talking about guns, period, in the hands of any terrorist is a danger to Americans, particularly inside the United States.
And so what we are trying to do with Van Hollen-Conyers is to close an alarming loophole that allows suspected and actual members of terrorist organizations to legally purchase guns. I will not repeat that sentence because it speaks for itself.
A GAO report: 56 firearm purchase attempts were made by individuals designated as known or suspected terrorists by the Federal Government. Forty-seven of these cases, transactions of sale were permitted to proceed because officials couldn't find any disqualifying information such as a felony conviction or court-determined mental defectiveness in the individual applicant's background.
So under the law as it stands without this amendment, even in the PATRIOT Act neither suspected or actual membership in a terrorist organization is a sufficient ground in and of itself to prevent such a purchase from taking place. I think this Committee is not about to let a PATRIOT Act reauthorization come out knowing that this is the case and that we must act.
I deliberately did not mention assault weapons because they are going to come up in a special amendment. So, my colleagues, please join us so that we can really wage the best war that we can against terrorists in the United States by keeping domestic guns out of their hands for those who know who they are selling them to. Again, as the gentleman from Maryland indicated, this turns on knowledge and intent, and I think that it is the least that we can do on a bill such as this.
I return the time back to my colleague, if he chooses to use it.
Mr. VAN HOLLEN. Well, I thank my colleague. I think the point has been made here. And I do want to stress that this is where you are knowingly transferring, where an individual knowingly transfers firearms to somebody who is on the terrorist watch list. It seems to fit very well into the provision that already exists with respect to providing material support to terrorists. And I urge my colleagues to adopt the amendment.
Mr. KING. Mr. Chairman?
Chairman SENSENBRENNER. The gentleman from Iowa, Mr. King.
Mr. KING. Mr. Chairman, I wish to be recognized to speak in opposition.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. KING. Thank you, Mr. Chairman. And although I agree with the sentiment in this amendment, and all of us want to take all weapons out of the hands of terrorists, I would seek to answer the question that was asked by the Ranking Member from Michigan, Mr. Conyers, although it may have been rhetorical, what could be more relevant than taking guns out of the hands of terrorists; I would submit taking bombs out of the hands of terrorists would be more relevant, given the circumstances that we have seen in the history of terrorism.
But it is not my particular concern. I would like to find a way, too, that we could verify that the terrorists are on the watch list for a reason. But in fact, we can't know if they are on the list or not because it is a classified list. And so I understand the amendment says `knowingly' the name appears on the file. I don't know how an individual that might be providing that gun would know that they were on the list, since it is classified.
And then the second point is that there is a list, though, and that list is the list of those who are disabled of their firearms rights. And it is a list that has been determined to be consistent with the Second Amendment of our Constitution. And those conditions are, people who have been adjudicated in one form or another for having a legitimate reason to have their Second Amendment gun rights denied, these would be people who have committed a felony, people who are a fugitive from justice, addicted to a controlled substance, or adjudicated mentally defective or an illegal alien, or dishonorably discharged from the military, or having renounced their U.S. citizenship or be subject to a restraining order, or being convicted of a crime of domestic violence. We make sure that when people are denied their constitutional rights to keep and own firearms that they have a process by which they go on the list where they are denied, they have an opportunity to appeal that, an opportunity for their case to be heard. And in this case, not only do they not have an opportunity to be on the terrorist watch list, they may not know that they are on the watch list. And if they might hear a rumor that they are, for example, be denied boarding an airplane, which has happened to some of our colleagues, then they only suspect that they are on; it might confirm they are on, but they may not know why.
So I think that even though the intent of this amendment is a good one, to take the weapons out of the hands of terrorists, it reaches beyond a point where we have constitutionally ever reached before with regard to their restraint on access to guns under the Second Amendment. So the language and the intent is good, but the effect on our Second Amendment of the Constitution, I believe, is----
Mr. CONYERS. Would the gentleman from Iowa yield to me briefly?
Mr. KING. I would be happy to, Mr. Conyers.
Mr. CONYERS. Thank you very much.
What I have heard you say is that terrorists have a constitutional right to weapons, a protected constitutional right----
Mr. KING. Reclaiming my time.
Mr. CONYERS. Right?
Mr. KING. Of course not. And in fact these people are not adjudicated as terrorists. You said yourself that they were known or suspected to be on the terrorist watch list, those 56 people that applied. I don't think that you stated before this Committee that they were all on the terrorist watch list, because that would have been at least acknowledging an understanding of what was on the classified list itself.
So I would conclude by urging a No vote and I would yield back my time.
Mr. VAN HOLLEN. Would the gentleman yield on that point?
Mr. KING. I have yielded back.
Chairman SENSENBRENNER. The gentlewoman from California, Ms. Waters.
Ms. WATERS. Thank you very much.
Mr. Chairman and members, this amendment appears to be the most reasonable, well thought-out amendment going directly to the heart of protecting us from terrorists or people who would do us harm. And yet, I am absolutely amazed that the gentleman on the opposite side of the aisle who just spoke is concerned about protecting the rights of suspected terrorists.
It seems to me we have sat here and we have listened to some of the same voices talk about how we can obtain private medical records, how we could place people under investigation without judicial review, how we can have access to e-mails, and surveillance of all kinds, invading the rights of folks who you don't even have to show probable cause. And here we have an objection to trying to keep guns out of the hands of suspected terrorists.
I don't understand it. It doesn't make good sense to me. And for those who would paint themselves as being concerned about how we secure this country, how we secure the homeland, how we really deal with this problem of terrorism, given that there is some information that would lead a reasonable person to believe that this person could be a terrorist, and you don't want to keep firearms out of their hands, I don't understand it. And we certainly must have a recorded vote on this. And I yield----
Mr. CONYERS. Would the gentlelady yield?
Ms. WATERS. I yield to the gentleman from New York.
Mr. WEINER. Thank you. What I found interesting in the opposition from one of the members on the other side is that the objective was right and the language was right, but there was some concern about his interpretation of, perhaps, that this would be problematic to the Second Amendment.
I just want to reiterate that the Van Hollen-Conyers amendment says that the person would only be in trouble under this section if they knowingly sold to someone who appeared on the list. So it is not as if he gets to guess or they have to do intelligence. They just have to know. I mean, if the intent was fine of the bill, well, that is at least a step in the right direction. If the language was acknowledged to being right, then the only problem is that the reading of it must be faulty.
Mr. KING. Would the gentleman yield?
Ms. WEINER. I don't control the time, but I certainly hope that the gentlelady will because I am dying to know what is it that you think is not good about it if you like the intent and the language? And I will yield back.
Ms. WATERS. I yield to the gentleman from Michigan.
Mr. KING. I thank the gentle----
Mr. CONYERS. I just want to----
Chairman SENSENBRENNER. She didn't yield to you.
Mr. CONYERS. I just want to point out what is left for us to do in this bill reauthorizing a PATRIOT Act and allowing people to knowingly sell to terrorists or suspected terrorists. Then that makes everything else we do secondary. We just opened the barn door. I can't figure out why we should stay around here for another day or so and mull over dozens of other very worthwhile amendments when we have already agreed that the constitutional rights of terrorists are protected by the Second Amendment to the Constitution--a proposition I have never heard in all of my years on the Judiciary Committee.
Ms. WATERS. Reclaiming my time, I am going to yield because I am so anxious to get to the vote on this. I think it is very important that we have a recorded vote. I yield back the balance of my time.
Mr. LUNGREN. Mr. Chairman?
Chairman SENSENBRENNER. The question----
Mr. LUNGREN. Mr. Chairman? Over here.
Chairman SENSENBRENNER. The gentleman from California did not hear the gentlewoman from California's request to go to a vote quickly?
Mr. LUNGREN. Yes, I did, but there are some remarks on the record that I----
Chairman SENSENBRENNER. Well, then, the gentleman is recognized for 5 minutes.
Mr. LUNGREN. Strike the last word in opposition to the amendment.
I mean, we know this is serious business. When I was attorney general, I set up a violence suppression unit that did nothing but go and take guns off the street from those who were convicted felons, those who were violent offenders. We took literally thousands off the street. We put people away for long periods of time. We had to deal with the gang issue. And one of the constitutional issues that comes up with lists of gangs is who has access to those lists, because on your gang list you often have people who are affiliated with gangs but don't have a criminal history. You can't mix them into criminal history records precisely because they are different categories. Some law enforcement have access to them, others do not.
It is my understanding--and someone can correct if I am wrong--it is my understanding that the Violent Gang and Terrorist Organization File maintained by the Attorney General is classified. Now, if that is the case, what we are doing here is trying to fool people with an amendment that seems to do something. If it is a classified list, how can anybody who doesn't have a classified clearance be able to see it?
And so what we are talking about here is a feel-good amendment that doesn't go to the question of dealing with terrorists or gang members. And I know it makes people feel good to talk about some sort of list that answers the questions, but having gone through this in one of my past lives and knowing that you have different categories of information on different lists, access to which is granted to only certain people under certain standards----
Ms. WATERS. Would the gentleman yield?
Mr. LUNGREN. Yes, I would be happy to yield.
Ms. WATERS. Two questions I see. First, I don't believe it is classified. But if we assume that it is, the amendment itself would apply only if the individual knew that the person was on that list. So----
Mr. LUNGREN. And there be no reason of knowing unless they had a classified----
Ms. WATERS. That is not true. If they knew, if they knew and sold it anyhow, that is the only time this would apply. So the gentleman's objection, even though I don't think it is classified, would not actually cause a problem.
And I thank the gentleman for yielding.
Mr. LUNGREN. Well, the other thing is, if this list is what I think it is, at certain moments in time you have people who are not members of a terrorist group or members of a gang, but have been put on there because of a suspicion that they may be. And that is one of the reasons that you don't allow access to some of these lists. I am just talking about from the standpoint of lists I know with respect to gang----
Mr. WEINER. Would the gentleman yield on that point?
Mr. LUNGREN. You have to be very careful about designating people as gang individuals and putting that out somewhere. And there have been carefully drawn limitations on who gets access to it and who doesn't.
Mr. WEINER. Would the gentleman yield?
Mr. LUNGREN. I mean, this is an interesting discussion, but----
Mr. WEINER. Would the gentleman yield on that point?
Mr. LUNGREN. Yes, sure.
Mr. WEINER. I am just curious. If the United States Government and the agencies in charge of making sure that people who are terrorists don't get onto planes, don't get access to secure places, if a person is on that list, isn't that--and someone knows they are on that list and sells them a weapon anyway, isn't that kind of a kind of precaution we might want to maybe possibly have? What is the harm? What is the harm that you see in saying that if someone knowing knows they are on that list, a list, by the way, that we rely upon for much tougher sanctions than this bill, what is the harm of saying if someone knowingly sells to someone----
Mr. LUNGREN. Well, I will take back my time, because what we are doing here is silly. Because you know the people don't have that information. This is the reason why we decide that we don't give airlines the list. We give them--they are allowed to make queries into the list to find out if people are there. They don't know why people are on or not on. It is one of the reasons we try and make a delineation between law enforcement people who have had an opportunity to be cleared to know this information, and others.
So if you want to, you know, vote for the bill, or vote----
Ms. WATERS. Will the gentleman yield?
Mr. LUNGREN- means something, you can. But the fact of the matter is it means absolutely nothing.
Ms. WATERS. What if Karl Rove leaked the information?
Mr. KING. Will the gentleman yield?
Mr. LUNGREN. I will yield whatever time I have.
Mr. KING. I thank the gentleman from California. And I would point out there is a distinction here, and that is the list that I read, the nine classifications of those who have been disabled of their constitutional rights, all the people who have been adjudicated, the list we are talking about in this amendment, though well-intentioned, is a list that includes those people who are under suspicion, not those who are adjudicated. And that is a real violation of the same kind of things that you are trying to avoid in many of your other amendments.
And I would yield back. Thank you.
Mr. WATT. Mr. Chairman?
Chairman SENSENBRENNER. For what purpose does the gentleman from North Carolina, Mr. Watt, seek recognition?
Mr. WATT. Move to strike the last word.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. WATT. Mr. Chairman, I had to step out and I walked back in to what appears to me to be a surreal discussion. I want to address one aspect of it. I mean, I thought that one of the real problems we had with the PATRIOT Act across the board was the extent to which it treads on constitutional rights. And Mr. King's argument about the Second Amendment is the one that I just couldn't quite come to grips with. He seemed to be suggesting that he couldn't support this amendment because it would tread on the Second Amendment to the Constitution of the United States.
I did want to remind him of the provisions in the Sixth Amendment to the Constitution of the United States, which provides that accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district in which the crime shall have been committed, which district shall have been previously ascertained by law; and be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
If the marginal--even if you assume that the Second Amendment says what you believe that it says, I can't imagine that you think that what we have done is more an impediment on the Second Amendment than it is on this amendment. I mean, we have people locked up, no charges brought against them, no right to counsel, no--I mean, you know. So I thought we all had accepted that there was going to be some infringement. That is why we had such a long debate about the sunset provisions, because, you know, at least you could go back and review the extent to which this is happening and get us back at some point to a balance that protects our constitutional rights. But you can't with integrity argue that you can protect only the Second Amendment, unless you are going to argue just as vigorously and vehemently that you are going to protect the other constitutional protections here.
So, I mean, I--now, I don't have any problem with you standing up for the Second Amendment. I mean, you know, I just want you to make it a little bit broader than the Second Amendment.
Mr. SCHIFF. Will the gentleman yield?
Mr. WATT. There is a whole bunch of provisions in the Constitution that we are treading and shredding--hopefully, temporarily. I just wanted to point that out. I will yield to the gentleman from California.
Mr. SCHIFF. I thank the gentleman for yielding. I just wanted to make a quick related point, and that is that a lot of the provisions of the Patriot bill that we are discussing today involve the Fourth Amendment right to be free from unreasonable searches and seizures. And in all the cases that we are talking about, about surveillance under FISA or other provisions, we are talking about people who are suspects. None of these people are adjudicated felons. We are all talking about suspects, and in some cases, with standards less than probable cause.
Now, here, yes, we are talking about people who are suspects, although I guess you could have people who are convicted also that are part of the Violent Gang and Terrorist Organization File. But yes, we are talking about suspects and their rights under the Fourth Amendment and suspects and their rights under the Second Amendment. And I find it, you know, very incongruous that we are saying that the Fourth Amendment rights we are willing to----
Mr. WATT. Fudge.
Mr. SCHIFF. Well, I wouldn't use the word `fudge,' but, you know, we are willing to push the envelope on the Fourth Amendment vis-a-vis these suspect, but when it comes to the sacrosanct Second Amendment, and we are talking about knowingly giving a firearm to somebody who is a potential terrorist, that that is okay because they are only potentially terrorists. But we can surveill potential terrorists; we just can't take their gun away.
That seems to me an extraordinary result, that we can go up on a wiretap of a potential terrorist, but we can't stop someone from knowingly giving guns to a potential terrorist. And I don't know why the Fourth Amendment, apart from reasons that are unspoken here in Committee but plain to everyone in this Committee, I don't know why the Second Amendment is getting so much more vigilant protection here than the Fourth or, as my colleague mentions, the Sixth.
Chairman SENSENBRENNER. The gentleman's time has expired.
The question is on the Van Hollen amendment. Those in favor will say aye? Opposed, no?
The noes appear to have it.
Mr. CONYERS. Record vote, sir.
Chairman SENSENBRENNER. A record vote will be ordered. Those in favor of the Van Hollen amendment will, as your names are called, answer aye; those opposed, no. And the clerk will call the role.
The CLERK. Mr. Hyde?
Mr. HYDE. No.
The CLERK. Mr. Hyde, no. Mr. Coble?
Mr. COBLE. No.
The CLERK. Mr. Coble, no. Mr. Smith?
Mr. SMITH. No.
The CLERK. Mr. Smith, no. Mr. Gallegly?
[No response.]
The CLERK. Mr. Goodlatte?
Mr. GOODLATTE. No.
The CLERK. Mr. Goodlatte, no. Mr. Chabot?
Mr. CHABOT. No.
The CLERK. Mr. Chabot, no. Mr. Lungren?
Mr. LUNGREN. No.
The CLERK. Mr. Lungren, no. Mr. Jenkins?
Mr. JENKINS. No.
The CLERK. Mr. Jenkins, no. Mr. Cannon?
[No response.]
The CLERK. Mr. Bachus?
[No response.]
The CLERK. Mr. Inglis?
Mr. INGLIS. No.
The CLERK. Mr. Inglis, no. Mr. Hostettler?
Mr. HOSTETTLER. No.
The CLERK. Mr. Hostettler, no. Mr. Green?
Mr. GREEN. No.
The CLERK. Mr. Green, no. Mr. Keller?
Mr. KELLER. No.
The CLERK. Mr. Keller, no. Mr. Issa?
Mr. ISSA. No.
The CLERK. Mr. Issa, no. Mr. Flake?
Mr. FLAKE. No.
The CLERK. Mr. Flake, no. Mr. Pence?
Mr. PENCE. No.
The CLERK. Mr. Pence, no. Mr. Forbes?
Mr. FORBES. No.
The CLERK. Mr. Forbes, no. Mr. King?
Mr. KING. No.
The CLERK. Mr. King, no. Mr. Feeney?
Mr. FEENEY. No.
The CLERK. Mr. Feeney, no. Mr. Franks?
Mr. FRANKS. No.
The CLERK. Mr. Franks, no. Mr. Gohmert?
Mr. GOHMERT. No.
The CLERK. Mr. Gohmert, no. Mr. Conyers?
Mr. CONYERS. Aye.
The CLERK. Mr. Conyers, aye. Mr. Berman?
Mr. BERMAN. Aye.
The CLERK. Mr. Berman, aye. Mr. Boucher?
[No response.]
The CLERK. Mr. Nadler?
Mr. NADLER. Aye.
The CLERK. Mr. Nadler, aye. Mr. Scott?
Mr. SCOTT. Aye.
The CLERK. Mr. Scott, aye. Mr. Watt?
Mr. WATT. Aye.
The CLERK. Mr. Watt, aye. Ms. Lofgren?
Ms. LOFGREN. Aye.
The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The CLERK. Ms. Waters?
Ms. WATERS. Aye.
The CLERK. Ms. Waters, aye. Mr. Meehan?
Mr. MEEHAN. Aye.
The CLERK. Mr. Meehan, aye. Mr. Delahunt?
Mr. DELAHUNT. Aye.
The CLERK. Mr. Delahunt, aye. Mr. Wexler?
Mr. WEXLER. Aye.
The CLERK. Mr. Wexler, aye. Mr. Weiner?
Mr. WEINER. Aye.
The CLERK. Mr. Weiner, aye. Mr. Schiff?
Mr. SCHIFF. Aye.
The CLERK. Mr. Schiff, aye. Ms. Sanchez?
Ms. SANCHEZ. Aye.
The CLERK. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. VAN HOLLEN. Aye.
The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. WASSERMAN SCHULTZ. Aye.
The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman SENSENBRENNER. No.
The CLERK. Mr. Chairman, no.
Chairman SENSENBRENNER. Further members who wish to cast or change their vote? The gentleman from California, Mr. Gallegly?
Mr. GALLEGLY. No.
The CLERK. Mr. Gallegly, no.
Chairman SENSENBRENNER. The gentleman from Virginia, Mr. Boucher?
Mr. BOUCHER. No.
The CLERK. Mr. Boucher, no.
Chairman SENSENBRENNER. If there are no further members who wish to cast or change their vote, the clerk will report.
The CLERK. Mr. Chairman, there are 15 ayes and 22 noes.
Chairman SENSENBRENNER. The amendment is not agreed to.
Are there further amendments? The gentleman from California, Mr. Berman.
Mr. BERMAN. Mr. Chairman, I have an amendment at the desk, Berman and Delahunt, on data mining report.
Chairman SENSENBRENNER. The clerk will report the amendment.
The CLERK. Amendment to H.R. 3199, offered by Mr. Berman and Mr. Delahunt. At the appropriate place in the bill, insert the following: Section XXX. Data mining report. (a) Definitions. In this section----
[The amendment of Mr. Berman and Mr. Delahunt follows:]
Mr. BERMAN. Mr. Chairman, I ask unanimous consent the amendment be considered as read.
Chairman SENSENBRENNER. The gentleman from Texas reserves a point of order. Without objection, the amendment is considered as read. Subject to the reservation, the gentleman from California is recognized for 5 minutes.
Mr. BERMAN. Thank you very much, Mr. Chairman.
This amendment that Mr. Delahunt and I are offering would require the departments and agencies of the Federal Government to report to Congress on the development and implementation of data mining technologies.
When Mr. Delahunt offered this amendment on behalf of both of us during the intelligence reform markup of this Committee, it was accepted by a voice vote. The General Accounting Office issued a report in May 2004 that identified almost 200 data mining projects throughout the Federal Government that were either operational or in the planning stages. Many of them make use of personally identifiable data obtained by private sector databases.
Two concerns lead us to this amendment. The first is that Americans rightly have privacy concerns about these data mining technologies, particularly when we hear that there are 200 of them in the works. When the Total Information Awareness Program came to light, there was tremendous public concern about the extent of the project.
Congress ought to know about these programs not just as they are being put into place, but as they are being developed, so that we can ensure that privacy concerns are taken into account.
The second reason for the amendment is that the budget for the Total Information Awareness Program in the Defense budget alone in 2004 was $169 million. The Defense appropriations bill cut all of that funding. These technologies are not free. They are expensive to develop and run. When Congress is unaware of their development and steps in only at the implementation to cut funding, taxpayer dollars are wasted.
Law enforcement must have the necessary means to protect our safety, but the use of data mining technologies should not be allowed to put Americans' privacy at risk. By implementing a reporting requirement, we can ensure that Congress knows in advance of implementation and is able to respond appropriately.
I know that there is a question about the germaneness of this amendment, and I know that when it was adopted last time, there were problems in sequential referrals because we seek to get reports on data mining in a number of different agencies, not just agencies that the Judiciary Committee has oversight on. At the appropriate time----
Chairman SENSENBRENNER. Will the gentleman yield?
Mr. BERMAN. I would be happy to yield.
Chairman SENSENBRENNER. The gentleman from California and other members of the Committee know that the chair has been very concerned about data mining in an unchecked and unreportable manner by agencies of the Executive Department. Now, when the original PATRIOT Act was first considered, the final version of the PATRIOT Act did have provisions checking data mining activity by the Justice Department.
I believe that the concern of the gentleman from California is a very well-founded one. And while I don't think that the amendment he is offering is germane under the rules of the House, I do think that he is talking about a legitimate subject that should be legislated on sometime further on in the legislative process, either in this bill or in subsequent legislation. And I will give my commitment to the gentleman from California to work with him on this subject, because I believe that he has spotted something that does need to be addressed.
Mr. BERMAN. Thank you very much. Reclaiming my time, I thank the Chairman very much both for his comments and for his commitment. And before I withdraw the amendment, I would like to yield to my cosponsor, Mr. Delahunt.
Mr. DELAHUNT. I won't take any time. I just appreciate the offer by the chair. I think this is an issue, however, that has really raised concerns on a broad swath among the American people in terms of privacy interests and something that really compels us to address. And I am hopeful that before the legislation we are considering today comes to the floor, that we will be able to work out, in an appropriate fashion, language so that it could be incorporated in that legislation.
With that, I yield back.
Mr. BERMAN. I yield back.
Chairman SENSENBRENNER. Does the gentleman withdraw his amendment?
Mr. BERMAN. I do.
Chairman SENSENBRENNER. The amendment is withdrawn. The point of order is thus moot.
For what purpose does the gentleman from California, Mr. Schiff, seek recognition?
Mr. SCHIFF. Thank you, Mr. Chairman. I have an amendment at the desk.
Chairman SENSENBRENNER. The clerk will report the amendment.
The CLERK. Nine, offered by Mr. Schiff and Ms. Waters. Add at the end of Section 8, page 9, after line 11, the following new Subsection E: Prohibition on delegation of application for order of production of records from library or bookstore or medical records containing personally identifiable information. Subsection A of such Section is amended----
Mr. SCHIFF. Mr. Chairman, I'd ask consent that the amendment be deemed as read.
Chairman SENSENBRENNER. Without objection, and the gentleman is recognized for 5 minutes.
[The amendment of Mr. Schiff and Ms. Waters follows:]
Mr. SCHIFF. Thank you, Mr. Chairman. I'll try to do this in less than five.
This is a very simple amendment to Section 215 that says that vis a vis the records that have the most concerns among all of our constituents--library records, or bookstore records, or medical records--that the existing authority in Section 215, which allows the Director of the FBI to delegate to a subordinate the decision to seek these records he would not be able to delegate. That is that in the limited case of libraries, bookstores, and medical records that you could still get them under Section 215, but they'd have to be approved by the Director of the FBI himself or herself.
I imagine, listening to my colleagues on the other side of the aisle that--and in particular as far as the Attorney General has certified--the library provision has never been used, at least as of the last public disclosure. So it would be very seldom that I would hope that a library or bookstore or medical record would be sought, and I don't think this would impose an undue burden on the Director of the FBI, and given the sensitivity of this, I think it makes sense for the FBI Director and the Director alone to make that decision, not delegate it away.
The fact that the library record provision may or may not have been used at this point doesn't alter the fact that it affects the behavior of all of our constituents, w