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USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005

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Location: Washington, DC


USA PATRIOT AND TERRORISM PREVENTION REAUTHORIZATION ACT OF 2005 -- (House of Representatives - July 21, 2005)

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Mr. BERMAN. Mr. Chairman, I thank our wonderful ranking member for yielding me this time.

Mr. Chairman, I voted for the PATRIOT Act in 2001. I abstained in the Committee on the Judiciary this year because I was hoping that some of my concerns could be addressed through a rule that would allow some of these issues to be brought to the floor. But I am very disappointed to say that the rule that was adopted for this very important bill is designed to look like it is fair, because it allows a number of amendments, but those amendments are either so sweeping that they will never get anywhere near and should not get a majority of the House to vote for them, or they tinker on the edges of some critical issues.

There are, to my way of thinking, two critical things that need to be done; and this rule does not allow them to be done. One is addressing the issue of sunsets.

The chairman bemoans the fact that out in the Nation so many people have such a misunderstanding of what the PATRIOT Act does or does not do. He may feel it is because of the bad motives of the people who talk about it. I would suggest it comes from this fundamental conflict between our desire for enhanced security and our love and commitment for continued liberty.

So people read about detentions of people without being indicted or without any deportation proceedings against them and wonder what is going on; and he is right, many of the things we have read about have nothing whatsoever to do with the PATRIOT Act. But part of the reason why the chairman can say we had such rigorous oversight, 10 hearings on this subject, continued letters from the chair and the ranking member pushing for information from the Justice Department, is because of the sunsets.

The failure of the rule to make the sunsets in order is a tremendous failure, not that all of them need to be reenacted, but on key sections at a time that is relevant for what the American people want, which is within the next 4 or 5 years there should be a chance to have those provisions sunsetted.

I want to get to just as fundamental an issue, to my way of thinking and that is the issue of the standards for secret orders from FISA courts that allow our law enforcement agencies to pursue terrorist investigations and break up terrorist cells.

Prior to the PATRIOT Act, and even under the SAFE Act, we have a standard which does not give law enforcement enough tools to gather the information through a carefully developed investigation to find out who the future terrorists are, who the people who might be planning terrorist attacks are.

Under the existing law, you have much too broad a standard. You are allowing orders that are not based on criminal information to be issued by FISA courts, required to be issued by FISA courts, allowing any kind of tangible records to be seized, whether or not they are pertaining to a specific person, if it is connected with, or, in the case of the base bill here, relevant to a terrorist investigation.

An amendment that the gentleman from Massachusetts (Mr. Delahunt) and the gentlewoman from California (Ms. Harman) and I proposed the Committee on Rules did not allow to come into the rule which would have provided the proper balance. It would have dealt with the limitations that are imposed on law enforcement by too restrictive a standard and, at the same time, clarify that even if it has not yet been misused, it is wrong to provide such a broad standard that records can be swept up that have no connection whatsoever with any relevant target of any terrorist investigation.

The Senate Committee on the Judiciary this morning unanimously passed the standard that we see on this chart. The standard says, if the target of the FISA order or the national security letter is an agent of a foreign power or is in contact with or known to an agent of a foreign power, a definition which deals with all the hypotheticals provided by my friend, the gentleman from California (Mr. Daniel E. Lungren), in criticizing the SAFE Act and pre-PATRIOT Act standard, it provides every hypothetical created that I have heard about with the ability to be pursued under FISA orders. Why were we not allowed to vote on this? Why would the Senate Committee on the Judiciary unanimously pass that sensible correction in the PATRIOT Act and this body not be even allowed to debate and vote on it?

For these reasons, I am going to be forced to vote ``no'' on this bill for the lack of opportunity to sunset key provisions like the lone-wolf provision, like the issue of national security letters to provide a forcing mechanism for oversight and for our failure to deal with the overly broad standard in the existing law and in the base bill. I hope when it comes back from the conference committee, that we will have a more balanced product that I will be able to support.

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Mr. BERMAN. Mr. Chairman, will the gentleman yield?

Mr. FLAKE. I yield to the gentleman from California.

Mr. BERMAN. I think underlying the gentleman from Michigan's question, is this not about the difference between the FBI and law enforcement using a national security letter to ask a bank to give it the financial records of all of its customers versus asking the bank to give it the financial records of the specific individuals it suspects might be involved or that it is interested in? I think that is at the heart of the question of the standard. That is why relevance to a terrorist investigation is not an adequate standard. You want the focus on something specific, rather than all of the bank's records of everybody who uses that bank. You want the people who might have had contact with the terrorist or suspected terrorist.

Mr. FLAKE. Mr. Chairman, part of what we have done in this amendment is offer individuals the opportunity to challenge the scope of the request. So whether or not it applies to them or additional people is challengeable through this amendment. That is part of what we are doing here.

Mr. BERMAN. Mr. Chairman, if the gentleman would continue to yield, that requires the bank, not the customers who had nothing to do with anything, to make the challenge.

Mr. FLAKE. The bank can make the challenge itself. The bank can challenge the scope. They are the recipient of the national security letter.

Mr. BERMAN. The bank is, not the customers of the bank.

Mr. FLAKE. That is correct.

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