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