USA Patriot and Terrorism Prevention Reauthorization Act of 2005 - 1
USA PATRIOT AND TERRORISM PREVENTION REAUTHORIZATION ACT OF 2005 -- (House of Representatives - July 21, 2005)
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Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may consume, and I rise in strong support of H.R. 3199, the USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005.
Mr. Chairman, the attacks of September 11, 2001, tragically affirmed the urgency of updating America's laws to address the clear and present danger presented by international terrorism. On that day, foreign terrorists maliciously and without provocation attacked the United States, murdered thousands of our citizens, and destroyed symbols of our freedom in a failed effort to break the spirit and resolve of the American people.
We must also recall that these terrorists exploited historic divisions between America's law enforcement and intelligence communities that had limited the dissemination of vital and timely information and increased America's vulnerability to terrorist attack.
In the wake of the 9/11 atrocities, broad bipartisan majorities in both Houses of Congress passed the PATRIOT Act that lowered the wall that prohibited our law enforcement and intelligence communities from effectively sharing information, and to enhance investigatory tools necessary to assess, detect, and prevent future terrorist attacks. U.S. law enforcement and intelligence authorities have utilized the expanded information sharing provisions contained in the PATRIOT Act to gain critical knowledge of the attentions of foreign-based terrorists before they occur, while preempting gathering terrorist threats at home.
While the PATRIOT Act and other anti-terrorism initiatives have helped avert additional attacks on our soil, that threat has not receded. Exactly 2 weeks ago, innocent citizens in London were murdered in a series of ruthlessly coordinated attacks. Earlier today, it appears, the London subway system came under renewed attack. Last year, the Madrid bombings brought unprecedented terror to the people of Spain, and ongoing terrorist operations around the globe demonstrate the imperative for continued vigilance.
When the House Committee on the Judiciary reported the PATRIOT Act in October 2001, I pledged to rigorously examine its implementation and the conduct of the war against terrorism. In my words and in my actions as committee Chair, I have maintained this commitment and emphasized the importance of better protecting our citizenry from terrorist attack while, at the same time preserving the values and liberties that distinguish us as Americans. The legislation we consider today reflects this careful balance.
H.R. 3199 is based upon 4 years of comprehensive bipartisan oversight consisting of hearing testimony, Inspector General reports, briefings, and oversight letters. Since April of this year alone, the committee has received testimony from 35 witnesses during 12 hearings on the PATRIOT Act. This extensive hearing and oversight record has demonstrated that the PATRIOT Act has been an effective tool against terrorists and other criminals. Of no less importance, and notwithstanding the vague and general suspicion expressed by some of its detractors, the record shows that there is no evidence whatsoever that the PATRIOT Act has been abused to violate Americans' civil liberties. None whatsoever.
To further allay concerns expressed by some, this bill makes important revisions to section 215 of the PATRIOT Act, which pertains to business records obtained through the Foreign Intelligence Surveillance Act, or FISA. I would note that section 215 is probably the most misunderstood and deliberately misrepresented provision of the PATRIOT Act. H.R. 3199 clarifies that the information likely to be obtained through a FISA warrant must relate to foreign intelligence information not concerning a U.S. person, or must be information pertaining to an ongoing international terrorism investigation or clandestine intelligence activities. The legislation also explicitly clarifies that a section 215 order will issue only "if the judge finds that the requirements have been met," and provides a judicial review process to authorize the court to set aside a section 215 order that has been challenged. Contrary to the unfounded allegations of some, there is no evidence that a single section 215 order has been served on any library since the PATRIOT Act was passed in October of 2001.
The Committee on the Judiciary last week conducted a nearly 12-hour markup of this legislation, at which 43 amendments were offered and debated. The reported version of this legislation extends for 10 years the sunset on sections 206 and 215 of the PATRIOT Act.
Section 206 pertains to roving wiretaps under FISA. This crucial provision updates the law to reflect contemporary communications technology by making a suspected terrorist, rather than a communications device, the proper target of a wiretap. This sunset provision was approved by the committee by an overwhelming bipartisan vote of 26 to 2. However, while the legislation sets expiration dates on certain provisions of the PATRIOT Act, congressional oversight of the entire PATRIOT Act must be perpetual.
Let me conclude with the following point: For too long opponents of the PATRIOT Act have transformed it into a grossly distorted caricature that bears no relationship whatsoever to the legislation itself. The PATRIOT Act has been misused by some as a springboard to launch limitless allegations that are not only unsubstantiated but are false and irresponsible. Our constituents expect and deserve substantive consideration of this vital issue, and I hope that today's debate reflects the bipartisan seriousness that this issue demands.
Mr. Chairman, the security of the American people is the most solemn responsibility of all entrusted to the Congress. Passage of the USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005 is vital to maintaining the post-9/11 law enforcement intelligence reforms that have reduced America's vulnerability to terrorist attack. We must never return to the pre-9/11 mindset that ignores the painful lessons of that day as well as the tragic experiences of our friends and allies.
I would urge my colleagues on both sides of the aisle to support this vital legislation.
Mr. Chairman, I reserve the balance of my time.
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Mr. SENSENBRENNER. Mr. Chairman, I yield myself 1 minute.
The gentleman from Virginia (Mr. Boucher) is sincere in his opposition to this bill, and I respect that. However, neither the national security letter scheme nor the delayed notification scheme were authorized for the first time by the PATRIOT Act. That was legislation that was in place prior to October 2001 when the original PATRIOT Act was passed and signed into law by the President.
What the PATRIOT Act did in both national security letters as well as in delayed notification warrants was simply to extend to anti-terrorism investigations authorities that already existed and up until that time had been found constitutional in investigations such as Mafia investigations, racketeering investigations, and drug-trafficking investigations.
So these complaints were not caused by the PATRIOT Act. They were caused by existing legislation, and we should deal with that, not in the context of this bill but elsewhere.
Mr. Chairman, I yield 2 minutes to the gentleman from North Carolina (Mr. Coble).
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Mr. SENSENBRENNER. Mr. Chairman, reclaiming my time, I am pleased that this bill and the USA PATRIOT Act will continue to protect civil liberties, while also providing law enforcement the tools they need to fight terrorists intent on harming Americans.
I yield further to the gentleman from Michigan.
Mr. SCHWARZ of Michigan. Mr. Chairman, section 215 of the PATRIOT Act pertains to the government's abilities to gain access to what we commonly refer to as business records, records compiled by a business or an institution pertaining to a customer or visitor to that entity. This provision has come to be known as the "library provision" because many librarians and civil libertarians are concerned that this provision of the PATRIOT Act could authorize the government to pour through the library records of everyday private citizens.
Now, it is my understanding that your version of the bill has added protections to ensure that law-abiding citizens and residents of the United States do not see their cherished civil liberties violated. Specifically, the bill states that no search can be conducted unless, I repeat, unless a Federal judge impaneled at the Foreign Intelligence Surveillance Court makes a finding that the information likely to be obtained concerns an ongoing investigation; repeat, an ongoing investigation to prevent international terrorism, and that that investigation is geared toward gathering foreign intelligence.
Mr. SENSENBRENNER. Mr. Chairman, reclaiming my time, yes, that is an accurate reading of the bill.
I further yield to the gentleman from Michigan (Mr. Schwarz).
Mr. SCHWARZ of Michigan. Mr. Chairman, I thank the gentleman. Is it also the case that the recipient of such an order, such as a business or video store, is allowed to consult a lawyer and to contest these orders, and that judges are authorized to review such challenge? In other words, we are not devolving to the executive branch powers of the judicial branch?
Mr. SENSENBRENNER. Mr. Chairman, further reclaiming my time, again, that is an accurate reading of the bill. I further yield to the gentleman from Michigan.
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Mr. SENSENBRENNER. Mr. Chairman, I yield myself 1 minute.
Mr. Chairman, I rarely disagree with my friend from North Carolina (Mr. Watt), but I want to take some time to correct the record.
The delayed notification or so-called "sneak-and-peek" warrants were authorized in the late seventies for purposes of racketeering and drug-trafficking investigations and were held constitutional by the Supreme Court in the early eighties as not violative of the fourth amendment.
What the PATRIOT Act did was expand this previously existing authority to terrorism investigations. So if the PATRIOT Act never existed, the 18 instances where the delayed-notification warrants were used for terrorism investigations would have been illegal. But all of the other investigations that the gentleman from North Carolina referred to would have been legal under existing practice which have been held constitutional.
Mr. Chairman, I reserve the balance of my time.
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Mr. SENSENBRENNER. Mr. Chairman, I yield myself 1 ½ minutes.
Mr. Chairman, we have heard another attack on delayed notification or sneak-and-peek warrants. Let me tell you what has happened earlier this month. A U.S. district judge in Washington State executed or authorized a delayed-notification warrant to look into a building on the U.S. side of the northern border. And what was discovered but a rather sophisticated tunnel between Canada and the United States to smuggle contraband, and perhaps terrorists, through the border and into this country without being detected by our border patrol.
Using a delayed-notice search warrant, the DEA and other agents entered the home on July 2 to examine the tunnel. Shortly thereafter, a U.S. district judge authorized the installation of cameras and listening devices in the home to monitor the activities in the home.
Using these twice, Federal, State and local law enforcement officials observed multiple trips by three defendants through the tunnel carrying large hockey bags or garbage bags. These bags were loaded into a van on the U.S. side and driven south for delivery.
Ninety-three pounds of marijuana were found in these bags when the Washington State Patrol stopped the car. That never would have happened without a delayed-notification warrant. And if they can bring 93 pounds of marijuana in, they can bring terrorists in as well.
These warrants are good. They protect us. They ought to be kept.
Mr. Chairman, I yield back the balance of my time.
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Mr. SENSENBRENNER. Mr. Chairman, I thank the gentleman for yielding me this time.
After listening to the speech of the distinguished minority leader, I have reached the conclusion she has not read the bill. She has not looked at the oversight that the Committee on the Judiciary has done over the last 3 ½ years.
We have an oversight record of bipartisan letters sent to the Justice Department, Inspector General's reports, and hearings that have a stack of paper that is about 2 feet high. In this bill we have had 12 hearings with 35 witnesses, people who have come from all over the spectrum; and 13 of the 16 sections of the PATRIOT Act that are sunsetted are not controversial. The three controversial sections, two of them are sunsetted; the third one, as a result of some of the testimony, has been amended, and that is the delayed notification warrants.
The fact of the matter remains that no federal court has found that any of the 16 sunsetted sections are unconstitutional, and the Inspector General, who is required by the PATRIOT Act itself to report to the Congress twice a year, has not found any civil liberties violations.
Let us stick to the facts. Let us stick to the result of the oversight. Let us stop the hyperbole. And let us stop the scare tactics that seem to surround the debate of those who are opposed to this law for whatever purpose.
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AMENDMENT NO. 2 OFFERED BY MR. FLAKE
Mr. FLAKE. Mr. Chairman, I offer an amendment.
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Mr. SENSENBRENNER. Mr. Chairman, I believe this amendment is a good one because it centralizes responsibility in the hands of the Director of the FBI in signing off on 215 applications for bookstore and library records.
But in the context of the overall debate, what I think is missing from this debate is not whether there is a potential for abuse by the Justice Department, but whether there is an actual record of abuse. And there has been no record of abuse by the Justice Department with bookstores and libraries. They have publicly responded repeatedly that they have not used the 215 order to look at the records of people checking out books or buying books at either bookstores or libraries.
Now, what this bill does is it makes an improvement to the law where there is a specific method of contesting a 215 order by the recipient. But to say that all of these records should be exempt from law enforcement scrutiny is to turn our bookstores and libraries into a sanctuary. We cannot allow that to happen.
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AMENDMENT NO. 3 OFFERED BY MR. ISSA
Mr. ISSA. Mr. Chairman, I offer an amendment.
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Mr. SENSENBRENNER. I thank the gentleman for yielding me this time.
Mr. Chairman, I rise in support of his amendment. And let me say first that the amendment that was made by the PATRIOT Act to allow a Federal judge, and only a Federal judge, to authorize a roving wiretap simply brought the law up to where the technology has gone because before the PATRIOT Act was passed you could not get an effective wiretap order on a cell phone. So the terrorists and the drug smugglers and the racketeers simply conducted their business on cell phones because you could not determine whether or not the cell phone was actually being used within the district in which the Federal court that issued the roving wiretap order sat.
So by passing the PATRIOT Act we were able to get the Justice Department the authority to ask a Federal judge to give a wiretap order against the cell phone or any communications device that might be used by the target. And that gets around the disposable cell phone issue.
The Issa amendment merely states that the judge has to be notified at the earliest reasonable time, but no later than 15 days after a roving wiretap order directs surveillance at a location not known at the time when the wiretap order was issued. And this increases judicial supervision and accountability and protects the civil liberties of the American people.
Now, earlier today both the minority leader and her deputy, the minority whip, were talking about the fact that there has been no oversight done by the Judiciary Committee over the PATRIOT Act. That, frankly, insults what both Democrats and Republicans have done on oversight of the PATRIOT Act on a bipartisan basis. Right here is the result of the oversight that the Judiciary Committee has done in the last 3 ½ years on this law. This is a stack of paper that is almost 2 feet high. I doubt that any other committee of Congress has done as much oversight on a single law as my committee has done on the PATRIOT Act.
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AMENDMENT NO. 4 OFFERED BY MRS. CAPITO
Mrs. CAPITO. Mr. Chairman, I offer an amendment.
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Mr. SENSENBRENNER. Mr. Chairman, will the gentlewoman yield?
Mrs. CAPITO. I yield to the gentleman from Wisconsin.
Mr. SENSENBRENNER. Mr. Chairman, I am pleased to support the gentlewoman's amendment and believe that it is an important consolidation in the criminal law relative to attacks against mass transportation systems.
First, we should not have different crimes and different penalties depending upon which type of mass transportation system is attacked. We should have uniform penalties and uniform definitions of criminal activity so someone who attacks a railroad will get the same penalty as someone would in a similar attack against a subway system or a bus or an airplane.
Secondly, I think we have to broaden the definition of what is "attacked" to make sure that attacks against support systems for mass transportation systems are treated the same way as an attack against the transportation system itself. We should not have a lesser penalty if you put a bomb in the station than if you blow up a train while it is crossing a bridge over a big gorge.
And I also think we ought to ensure that terrorists who attack these systems are punished with appropriate severity. The gentlewoman's amendment does all of these things, and I would urge its support and unanimous adoption by the House.
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AMENDMENT NO. 5 OFFERED BY MR. FLAKE
Mr. FLAKE. Mr. Chairman, I offer an amendment.
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Mr. SENSENBRENNER. Mr. Chairman, will the gentleman yield?
Mr. FLAKE. I yield to the gentleman from Wisconsin.
Mr. SENSENBRENNER. Mr. Chairman, I thank the gentleman for yielding to me, and, Mr. Chairman, I rise in support of the amendment offered by the gentleman from Arizona (Mr. Flake).
One of the things that the bill did in section 215 was to provide a procedure for challenging a section 215 order. What this does is it codifies procedures for challenging the receipt of national security letters, and I think that this is a step in the right direction.
Let me say that a national security letter is never issued to the target of an investigation. A place where it would be issued would be to get records that are in the custody of someone who may have information relative to the target of the investigation. For example, it appears that one of the people who was involved in the London bombing 2 weeks ago studied at the University of North Carolina. To get the records of this person's attendance at the University of North Carolina would be a subject of a national security letter. Now, I do not know whether one has been issued or one has not been, but that is an example of the type of information that the NSLs are used for.
This is a good amendment, Mr. Chairman, and I support it.
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AMENDMENT NO. 6 OFFERED BY MS. WATERS
Ms. WATERS. Mr. Chairman, I offer an amendment.
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Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I think every Member of this Congress, liberal or conservative, Republican or Democrat, takes seriously the oath that we took at the beginning of this Congress to preserve, protect, and defend the Constitution of the United States against all enemies, foreign and domestic.
The amendment that the gentlewoman from California has introduced is going to make it very difficult to conduct any type of criminal or terrorist investigation using a national security letter because it basically eviscerates the nondisclosure rules that national security letters and literally all other tools in criminal investigations have attached to them.
I think the last thing in the world the American public wants to see is if somebody gets a national security letter or a grand jury subpoena or testifies before the grand jury, something in the newspaper that says that John Doe is being investigated. And if John Doe is really involved in criminal or terrorist activities, that is going to be a tip-off that the feds are on the heels of John and maybe he ought to flee the country or do other things to eliminate the evidence that would be used to convict that person of the crime that he has either committed or a crime that he is in a conspiracy with others to commit.
Let me say that by their very nature national security letters involve our national security, and the national security letters are usually not issued against the targets of investigations but to get records that would establish evidence that could be used against the target of the investigation. And if that evidence that was being collected ended up being disclosed and became a matter of discourse in the public press, I do not know how law enforcement would be able to complete its investigation to go after those that are suspected of criminal or terrorist activities.
But let me say there is another aspect to the gentlewoman's amendment that I think is really bad policy and can really hurt somebody who is innocent. Because of the nature and threat of terrorism, when there is a tip that is sent to law enforcement, law enforcement is obligated to investigate it. Now, that tip might be false. That tip might be a malicious tip by a personal enemy against the person who had information given to law enforcement. But, nonetheless, law enforcement has got to proceed. And if they do their investigation and issue national security letters and find out that the person that the tip was lodged against is up to absolutely no criminal or terrorist activity, if that person's name gets in the newspaper, their reputation is destroyed even though they are innocent. So I think that the amendment of the gentlewoman from California is one that will end up leaking information about an investigation of someone who may be guilty but also leaking information about an incomplete investigation of someone where the evidence would exonerate them before that exoneration has been established. And that is why, either way we see it, the gentlewoman's amendment is bad news and should be rejected.
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AMENDMENT NO. 7 OFFERED BY MR. DELAHUNT
Mr. DELAHUNT. Mr. Chairman, I offer an amendment.
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Mr. SENSENBRENNER. Mr. Chairman, I ask unanimous consent to claim the time in opposition, even though I am not in opposition to the amendment.
The Acting CHAIRMAN. Is there objection to the request of the gentleman from Wisconsin?
There was no objection.
Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I believe that this is a good amendment and ought to be supported. It makes important changes to the reference in the forfeiture statute to the definition of international terrorism from the definition of domestic terrorism.
There are various definitions of terrorism under Federal law. In title XVIII there has been a confusion over a new definition created in the USA PATRIOT Act for domestic terrorism. That provision is supposed to be used for administrative procedures such as nationwide searches, but another part of the PATRIOT Act, section 806, uses the reference for asset forfeiture, which is more of a penalty. This has raised concerns about those who exercise their first amendment rights. As a result, groups from both sides of the political spectrum have wanted to change the definition of domestic terrorism.
The amendment fixes the problem by changing the reference in section 806, asset forfeiture, to the definition of a Federal crime of terrorism under section 2332b(g)(5)(B) instead, which lists specific crimes that constitute terrorism. Thus the more general definition may still be used for administrative purposes and the more narrow definition for penalties and criminal prosecutions.
I believe that this is a good amendment.
Mr. Chairman, I yield such time as he may consume to the gentleman from Arizona (Mr. Flake).
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AMENDMENT NO. 8 OFFERED BY MR. FLAKE
Mr. FLAKE. Mr. Chairman, I offer an amendment.
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Mr. SENSENBRENNER. Mr. Chairman, I support this amendment. I do not think that there should be a delayed notification warrant excuse for unduly delaying a trial, but we have heard an awful lot about delayed notification warrants here. Let me again repeat the fact that delayed notification warrants were not created by the PATRIOT Act when it was passed 3 ½ years ago. It was existing law for drug-trafficking and racketeering investigations, and the PATRIOT Act only expanded it to include terrorism investigations.
Mr. Chairman, I would like to give Members today a very vivid pictorial example on how these warrants work. Using a delayed notification search warrant, the DEA and other Federal agents entered a home along the border between Washington State and Canada on July 2, 2005, because there was information that the first-ever tunnel under the border between Canada and the United States has being used for drug trafficking.
What did they find? They found a very sophisticated tunnel, and took a picture of it. There were various camera devices and listening devices that the agents put into this tunnel, and they ended up finding that the tunnel had been used to transport 93 pounds of marijuana from Canada into the United States.
This is a picture of the U.S. entrance to the tunnel on our side of the border, very close to Canada. It probably is best described as the U.S. exit. But on the Canadian side of the border the entrance to the tunnel was in a building. So the contraband was stored in this building, was put into the tunnel, taken underneath the border and exited in the United States.
Now, the tunnel that I showed in the first picture was big enough to smuggle terrorists across the border, should it be used for that purpose. All this ended up being exposed as a result of a delayed notification warrant. The amendment is a good one; so are delayed notification warrants.
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