107th Congress Rept.107-534
HOUSE OF REPRESENTATIVES
2d Session Part I
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HOMELAND SECURITY INFORMATION SHARING ACT
_______
June 25, 2002.--Ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 4598]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 4598) to provide for the sharing of homeland security
information by Federal intelligence and law enforcement
agencies with State and local entities, having considered the
same, report favorably thereon with an amendment and recommend
that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 6
Background and Need for the Legislation.......................... 6
Hearings......................................................... 7
Committee Consideration.......................................... 7
Vote of the Committee............................................ 7
Committee Oversight Findings..................................... 7
Performance Goals and Objectives................................. 7
New Budget Authority and Tax Expenditures........................ 7
Congressional Budget Office Cost Estimate........................ 7
Constitutional Authority Statement............................... 8
Section-by-Section Analysis and Discussion....................... 8
Changes in Existing Law Made by the Bill, as Reported............ 13
Markup Transcript................................................ 16
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Homeland Security Information Sharing
Act''.
SEC. 2. FINDINGS AND SENSE OF CONGRESS.
(a) Findings.--The Congress finds the following:
(1) The Federal Government is required by the Constitution to
provide for the common defense, which includes terrorist
attack.
(2) The Federal Government relies on State and local
personnel to protect against terrorist attack.
(3) The Federal Government collects, creates, manages, and
protects classified and sensitive but unclassified information
to enhance homeland security.
(4) Some homeland security information is needed by the State
and local personnel to prevent and prepare for terrorist
attack.
(5) The needs of State and local personnel to have access to
relevant homeland security information to combat terrorism must
be reconciled with the need to preserve the protected status of
such information and to protect the sources and methods used to
acquire such information.
(6) Granting security clearances to certain State and local
personnel is one way to facilitate the sharing of information
regarding specific terrorist threats among Federal, State, and
local levels of government.
(7) Methods exist to declassify, redact, or otherwise adapt
classified information so it may be shared with State and local
personnel without the need for granting additional security
clearances.
(8) State and local personnel have capabilities and
opportunities to gather information on suspicious activities
and terrorist threats not possessed by Federal agencies.
(9) The Federal Government and State and local governments
and agencies in other jurisdictions may benefit from such
information.
(10) Federal, State, and local governments and intelligence,
law enforcement, and other emergency preparation and response
agencies must act in partnership to maximize the benefits of
information gathering and analysis to prevent and respond to
terrorist attacks.
(11) Information systems, including the National Law
Enforcement Telecommunications System and the Terrorist Threat
Warning System, have been established for rapid sharing of
classified and sensitive but unclassified information among
Federal, State, and local entities.
(12) Increased efforts to share homeland security information
should avoid duplicating existing information systems.
(b) Sense of Congress.--It is the sense of Congress that Federal,
State, and local entities should share homeland security information to
the maximum extent practicable, with special emphasis on hard-to-reach
urban and rural communities.
SEC. 3. FACILITATING HOMELAND SECURITY INFORMATION SHARING PROCEDURES.
(a) Presidential Procedures for Determining Extent of Sharing of
Homeland Security Information.--
(1) The President shall prescribe procedures under which
relevant Federal agencies determine--
(A) whether, how, and to what extent homeland
security information may be shared with appropriate
State and local personnel, and with which such
personnel it may be shared;
(B) how to identify and safeguard homeland security
information that is sensitive but unclassified; and
(C) to the extent such information is in classified
form, whether, how, and to what extent to remove
classified information, as appropriate, and with which
such personnel it may be shared after such information
is removed.
(2) The President shall ensure that such procedures apply to
all agencies of the Federal Government.
(3) Such procedures shall not change the substantive
requirements for the classification and safeguarding of
classified information.
(4) Such procedures shall not change the requirements and
authorities to protect sources and methods.
(b) Procedures for Sharing of Homeland Security Information.--
(1) Under procedures prescribed by the President, all
appropriate agencies, including the intelligence community,
shall, through information sharing systems, share homeland
security information with appropriate State and local personnel
to the extent such information may be shared, as determined in
accordance with subsection (a), together with assessments of
the credibility of such information.
(2) Each information sharing system through which information
is shared under paragraph (1) shall--
(A) have the capability to transmit unclassified or
classified information, though the procedures and
recipients for each capability may differ;
(B) have the capability to restrict delivery of
information to specified subgroups by geographic
location, type of organization, position of a recipient
within an organization, or a recipient's need to know
such information;
(C) be configured to allow the efficient and
effective sharing of information; and
(D) be accessible to appropriate State and local
personnel.
(3) The procedures prescribed under paragraph (1) shall
establish conditions on the use of information shared under
paragraph (1)--
(A) to limit the redissemination of such information
to ensure that such information is not used for an
unauthorized purpose;
(B) to ensure the security and confidentiality of
such information;
(C) to protect the constitutional and statutory
rights of any individuals who are subjects of such
information; and
(D) to provide data integrity through the timely
removal and destruction of obsolete or erroneous names
and information.
(4) The procedures prescribed under paragraph (1) shall
ensure, to the greatest extent practicable, that the
information sharing system through which information is shared
under such paragraph include existing information sharing
systems, including, but not limited to, the National Law
Enforcement Telecommunications System, the Regional Information
Sharing System, and the Terrorist Threat Warning System of the
Federal Bureau of Investigation.
(5) Each appropriate Federal agency, as determined by the
President, shall have access to each information sharing system
through which information is shared under paragraph (1), and
shall therefore have access to all information, as appropriate,
shared under such paragraph.
(6) The procedures prescribed under paragraph (1) shall
ensure that appropriate State and local personnel are
authorized to use such information sharing systems--
(A) to access information shared with such personnel;
and
(B) to share, with others who have access to such
information sharing systems, the homeland security
information of their own jurisdictions, which shall be
marked appropriately as pertaining to potential
terrorist activity.
(7) Under procedures prescribed jointly by the Director of
Central Intelligence and the Attorney General, each appropriate
Federal agency, as determined by the President, shall review
and assess the information shared under paragraph (6) and
integrate such information with existing intelligence.
(c) Sharing of Classified Information and Sensitive but Unclassified
Information With State and Local Personnel.--
(1) The President shall prescribe procedures under which
Federal agencies may, to the extent the President considers
necessary, share with appropriate State and local personnel
homeland security information that remains classified or
otherwise protected after the determinations prescribed under
the procedures set forth in subsection (a).
(2) It is the sense of Congress that such procedures may
include one or more of the following means:
(A) Carrying out security clearance investigations
with respect to appropriate State and local personnel.
(B) With respect to information that is sensitive but
unclassified, entering into nondisclosure agreements
with appropriate State and local personnel.
(C) Increased use of information-sharing partnerships
that include appropriate State and local personnel,
such as the Joint Terrorism Task Forces of the Federal
Bureau of Investigation, the Anti-Terrorism Task Forces
of the Department of Justice, and regional Terrorism
Early Warning Groups.
(d) Responsible Officials.--For each affected Federal agency, the
head of such agency shall designate an official to administer this Act
with respect to such agency.
(e) Federal Control of Information.--Under procedures prescribed
under this section, information obtained by a State or local government
from a Federal agency under this section shall remain under the control
of the Federal agency, and a State or local law authorizing or
requiring such a government to disclose information shall not apply to
such information.
(f) Definitions.--As used in this section:
(1) The term ``homeland security information'' means any
information possessed by a Federal, State, or local agency
that--
(A) relates to the threat of terrorist activity;
(B) relates to the ability to prevent, interdict, or
disrupt terrorist activity;
(C) would improve the identification or investigation
of a suspected terrorist or terrorist organization; or
(D) would improve the response to a terrorist act.
(2) The term ``intelligence community'' has the meaning given
such term in section 3(4) of the National Security Act of 1947
(50 U.S.C. 401a(4)).
(3) The term ``State and local personnel'' means any of the
following persons involved in prevention, preparation, or
response for terrorist attack:
(A) State Governors, mayors, and other locally
elected officials.
(B) State and local law enforcement personnel and
firefighters.
(C) Public health and medical professionals.
(D) Regional, State, and local emergency management
agency personnel, including State adjutant generals.
(E) Other appropriate emergency response agency
personnel.
(F) Employees of private-sector entities that affect
critical infrastructure, cyber, economic, or public
health security, as designated by the Federal
government in procedures developed pursuant to this
section.
(4) The term ``State'' includes the District of Columbia and
any commonwealth, territory, or possession of the United
States.
SEC. 4. REPORT.
(a) Report Required.--Not later than 12 months after the date of the
enactment of this Act, the President shall submit to the congressional
committees specified in subsection (b) a report on the implementation
of section 3. The report shall include any recommendations for
additional measures or appropriation requests, beyond the requirements
of section 3, to increase the effectiveness of sharing of information
among Federal, State, and local entities.
(b) Specified Congressional Committees.--The congressional committees
referred to in subsection (a) are the following committees:
(1) The Permanent Select Committee on Intelligence and the
Committee on the Judiciary of the House of Representatives.
(2) The Select Committee on Intelligence and the Committee on
the Judiciary of the Senate.
SEC. 5. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be necessary
to carry out section 3.
SEC. 6. AUTHORITY TO SHARE GRAND JURY INFORMATION.
Rule 6(e) of the Federal Rules of Criminal Procedure is amended--
(1) in paragraph (2), by inserting ``, or of guidelines
jointly issued by the Attorney General and Director of Central
Intelligence pursuant to Rule 6,'' after ``Rule 6''; and
(2) in paragraph (3)--
(A) in subparagraph (A)(ii), by inserting ``or of a
foreign government'' after ``(including personnel of a
state or subdivision of a state'';
(B) in subparagraph (C)(i)--
(i) in subclause (I), by inserting before the
semicolon the following: ``or, upon a request
by an attorney for the government, when sought
by a foreign court or prosecutor for use in an
official criminal investigation'';
(ii) in subclause (IV)--
(I) by inserting ``or foreign'' after
``may disclose a violation of State'';
(II) by inserting ``or of a foreign
government'' after ``to an appropriate
official of a State or subdivision of a
State''; and
(III) by striking ``or'' at the end;
(iii) by striking the period at the end of
subclause (V) and inserting ``; or''; and
(iv) by adding at the end the following:
``(VI) when matters involve a threat of
actual or potential attack or other grave
hostile acts of a foreign power or an agent of
a foreign power, domestic or international
sabotage, domestic or international terrorism,
or clandestine intelligence gathering
activities by an intelligence service or
network of a foreign power or by an agent of a
foreign power, within the United States or
elsewhere, to any appropriate federal, state,
local, or foreign government official for the
purpose of preventing or responding to such a
threat.''; and
(C) in subparagraph (C)(iii)--
(i) by striking ``Federal'';
(ii) by inserting ``or clause (i)(VI)'' after
``clause (i)(V)''; and
(iii) by adding at the end the following:
``Any state, local, or foreign official who
receives information pursuant to clause (i)(VI)
shall use that information only consistent with
such guidelines as the Attorney General and
Director of Central Intelligence shall jointly
issue.''.
SEC. 7. AUTHORITY TO SHARE ELECTRONIC, WIRE, AND ORAL INTERCEPTION
INFORMATION.
Section 2517 of title 18, United States Code, is amended by adding at
the end the following:
``(7) Any investigative or law enforcement officer, or attorney for
the government, who by any means authorized by this chapter, has
obtained knowledge of the contents of any wire, oral, or electronic
communication, or evidence derived therefrom, may disclose such
contents or derivative evidence to a foreign investigative or law
enforcement officer to the extent that such disclosure is appropriate
to the proper performance of the official duties of the officer making
or receiving the disclosure, and foreign investigative or law
enforcement officers may use or disclose such contents or derivative
evidence to the extent such use or disclosure is appropriate to the
proper performance of their official duties.
``(8) Any investigative or law enforcement officer, or attorney for
the government, who by any means authorized by this chapter, has
obtained knowledge of the contents of any wire, oral, or electronic
communication, or evidence derived therefrom, may disclose such
contents or derivative evidence to any appropriate Federal, State,
local, or foreign government official to the extent that such contents
or derivative evidence reveals a threat of actual or potential attack
or other grave hostile acts of a foreign power or an agent of a foreign
power, domestic or international sabotage, domestic or international
terrorism, or clandestine intelligence gathering activities by an
intelligence service or network of a foreign power or by an agent of a
foreign power, within the United States or elsewhere, for the purpose
of preventing or responding to such a threat. Any official who receives
information pursuant to this provision may use that information only as
necessary in the conduct of that person's official duties subject to
any limitations on the unauthorized disclosure of such information, and
any State, local, or foreign official who receives information pursuant
to this provision may use that information only consistent with such
guidelines as the Attorney General and Director of Central Intelligence
shall jointly issue.''.
SEC. 8. FOREIGN INTELLIGENCE INFORMATION.
(a) Dissemination Authorized.--Section 203(d)(1) of the Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act (USA PATRIOT ACT) of 2001 (Public
Law 107-56; 50 U.S.C. 403-5d) is amended--
(1) by striking ``Notwithstanding any other provision of law,
it'' and inserting ``It''; and
(2) by adding at the end the following: ``It shall be lawful
for information revealing a threat of actual or potential
attack or other grave hostile acts of a foreign power or an
agent of a foreign power, domestic or international sabotage,
domestic or international terrorism, or clandestine
intelligence gathering activities by an intelligence service or
network of a foreign power or by an agent of a foreign power,
within the United States or elsewhere, obtained as part of a
criminal investigation to be disclosed to any appropriate
Federal, State, local, or foreign government official for the
purpose of preventing or responding to such a threat. Any
official who receives information pursuant to this provision
may use that information only as necessary in the conduct of
that person's official duties subject to any limitations on the
unauthorized disclosure of such information, and any State,
local, or foreign official who receives information pursuant to
this provision may use that information only consistent with
such guidelines as the Attorney General and Director of Central
Intelligence shall jointly issue.''.
(b) Conforming Amendments.--Section 203(c) of that Act is amended--
(1) by striking ``section 2517(6)'' and inserting
``paragraphs (6) and (8) of section 2517 of title 18, United
States Code,''; and
(2) by inserting ``and (VI)'' after ``Rule
6(e)(3)(C)(i)(V)''.
SEC. 9. INFORMATION ACQUIRED FROM AN ELECTRONIC SURVEILLANCE.
Section 106(k)(1) of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1806) is amended by inserting after ``law enforcement
officers'' the following: ``or law enforcement personnel of a State or
political subdivision of a State (including the chief executive officer
of that State or political subdivision who has the authority to appoint
or direct the chief law enforcement officer of that State or political
subdivision)''.
SEC. 10. INFORMATION ACQUIRED FROM A PHYSICAL SEARCH.
Section 305(k)(1) of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1825) is amended by inserting after ``law enforcement
officers'' the following: ``or law enforcement personnel of a State or
political subdivision of a State (including the chief executive officer
of that State or political subdivision who has the authority to appoint
or direct the chief law enforcement officer of that State or political
subdivision)''.
Purpose and Summary
With the passage of the USA PATRIOT Act, this Congress
began to break down the barriers to facilitate information
sharing between Federal law enforcement officials and the
intelligence community.\1\ H.R. 4598, the ``Homeland Security
Information Sharing Act'' requires the President to create
procedures to strip out classified information so that State
and local officials may receive the information without
clearances. The bill also removes the barriers for State and
local officials to share law enforcement and intelligence
information with Federal officials.
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\1\ Pub. L. No. 107-56, 115 Stat. 242.
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Background and Need for the Legislation
The U.S. is in a war against terrorism. This war is
borderless and threatens Americans at home and abroad. To
prevent, disruption and respond to a terrorist attack at home,
the Federal Government must improve three critical areas to
protect our homeland. Those areas are: (1) information sharing;
(2) analysis of the information; and (3) coordination. All
three are interdependent and vital for a strong homeland
security system that will prevent, disrupt and, if necessary,
respond to a terrorist attack. All Federal, State and local
government officials need to share information with the
appropriate officials for analysis of threats to determine the
appropriate response.
After September 11, 2001, it became immediately clear that
there were serious problems with communications between Federal
law enforcement agencies and the intelligence community. The
Federal Government knew then, as did the press and the public,
that we had some warnings, but the lack of information sharing
prevented the U.S. intelligence community from appropriately
responding.
The Administration and the Congress took immediate action
to address this problem by drafting and passing the USA PATRIOT
Act. The President signed that bill into law on October 26,
2001. The very purpose of that bill was to improve information
sharing for the law enforcement and intelligence communities to
combat terrorism and terrorist-related crimes. Prior to the
enactment of this landmark legislation, information sharing was
limited to law enforcement agencies. This limitation hampered
law enforcement officials in sharing or receiving information
with other Government officials that was needed to perform
official duties related to terrorist activities or homeland
security.
With any information-sharing bill, protecting privacy of
citizens must be balanced with protecting the nation's
security. The Administration and the Congress maintained that
balance in the USA PATRIOT Act by limiting the type of
information that may be shared and requiring that information
may only be made available to persons agencies who are engaged
in the performance of the official duties.
Similar protections are include in H.R. 4598, which expands
the information-sharing to State and local officials. The USA
PATRIOT Act did not remove restrictions in sharing homeland
security information with States and localities. The country
needs a comprehensive information sharing system that includes
Federal, State and local law enforcement agencies. H.R. 4598
would facilitate communications between State and local
officials by directing the Administration to create procedures
for the sharing of classified and unclassified, but sensitive,
homeland security information and by extending the provisions
in the USA PATRIOT Act to State and local officials with regard
to cover grand jury information and law enforcement or
intelligence surveillance information.
Hearings
The Subcommittee on Crime, Terrorism, and Homeland Security
held hearings on H.R. 4598, the ``Homeland Security Information
Sharing Act,'' on June 4, 2002. Testimony was received from 3
witnesses. The witnesses were: the Honorable Saxby Chambliss
(GA), the Honorable Jane Harman (CA); and the Honorable John
Cary Bittick, President of the National Sheriff's Association.
Committee Consideration
On June 4, 2002, the Subcommittee on Crime, Terrorism, and
Homeland Security met in open session and ordered favorably
reported, the bill H.R. 4598, the ``Homeland Security
Information Sharing Act,'' as amended, by a voice vote, a
quorum being present. On June 13, 2002, the Committee met in
open session and ordered favorably reported, the bill H.R. 4598
with amendment, by voice vote, a quorum being present.
Vote of the Committee
There were no recorded votes for H.R. 4598.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Performance Goals and Objectives
H.R. 4598, will facilitate the sharing of critical threat
information between Federal agencies and State and local
personnel.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 4598, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 25, 2002.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4598, the Homeland
Security Information Sharing Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Dan L. Crippen, Director.
Enclosure
H.R. 4598--Homeland Security Information Sharing Act.
CBO estimates that implementing H.R. 4598 within the
Department of Justice (DOJ) would cost less than $500,000
annually, subject to the availability of appropriated funds.
CBO cannot determine the cost to implement the bill's
provisions for Federal intelligence agencies. The bill would
not affect direct spending or receipts, so pay-as-you-go
procedures would not apply.
H.R. 4598 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on State, local, or tribal governments.
The bill would benefit State and local governments by allowing
these levels of government better access to homeland security
information.
H.R. 4598 would direct the President to establish
guidelines for Federal agencies to share homeland security
information with State and local personnel. Based on
information from DOJ about the current and anticipated levels
of information sharing, we do not expect that the bill would
have a significant effect on Federal spending for these
activities. CBO cannot estimate the cost to conduct these
activities at Federal intelligence agencies because the
information necessary to make such an estimate is classified.
The CBO staff contacts for this estimate are Mark
Grabowicz, and Matthew Schmit. This estimate was approved by
Peter H. Fontaine, Deputy Assistant Director for Budget
Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8 of the Constitution.
Section-by-Section Analysis and Discussion
SEC. 1. SHORT TITLE.
The short title is the ``Homeland Security Information
Sharing Act.''
SEC. 2. FINDINGS AND SENSE OF THE CONGRESS.
This section provides the following findings:
(1) The Constitution requires the Federal Government to
provide for the common defense, which includes a terrorist
attack.
(2) The Federal Government relies on State and local
personnel to protect against terrorist attacks.
(3) The Federal Government collects, creates, manages,
and protects classified and sensitive, but unclassified
information to enhance homeland security.
(4) State and local personnel need some of the homeland
security information to prevent and prepare for terrorist
attacks.
(5) The Federal Government must reconcile the need to
provide this information to the State and local officials with
the need to protect sources and methods used to acquire such
information.
(6) One way to facilitate information sharing regarding
specific terrorist threats among Federal, State, and local
levels of government is to grant security clearances to certain
State and local personnel.
(7) Methods exist to declassify, redact, or otherwise
adapt classified information so it may be shared with State and
local officials without granting additional security
clearances.
(8) State and local personnel have capabilities and
opportunities to gather information on suspicious activities
and terrorist threats not possessed by the Federal agencies.
(9) The Federal Government and State and local
governments and agencies in other jurisdictions may benefit
from such information.
(10) Federal, State, and local governments and
intelligence, law enforcement, and other emergency preparation
and response agencies must act in partnership to maximize the
benefits of information gathering and analysis to prevent and
respond to terrorist attacks.
(11) Information systems, including the National Law
Enforcement Telecommunications System and the Terrorist Threat
Warning System, have been established for rapid sharing of
classified and sensitive, but unclassified, information among
Federal, State and local entities.
(12) Increased efforts to share homeland security
information should avoid duplicating existing information
systems.
Additionally, this section provides a sense of the Congress
that all levels of government should share homeland security
information to the maximum extent practicable, with special
emphasis on hard-to-reach urban and rural community.
SEC. 3. FACILITATING HOMELAND SECURITY INFORMATION SHARING PROCEDURES.
Subsection (a) of section 3 requires the President to
establish procedures for Federal agencies to determine the
extent to which homeland security information is shared with
State and local personnel. Specifically, the section directs
the President to establish procedures that require Federal
agencies to determine whether, how, and to what extent,
homeland security information may be shared with the
appropriate State and local personnel. Additionally, the
procedures shall provide a process by which Federal agencies
determine whether, how, and to what extent, unclassified
versions of the information may be made shared and with which
State and local personnel. The procedures must identify and
safeguard homeland security information that is sensitive but
unclassified.
This section also requires the President to ensure that
such procedures apply to all Federal agencies. The bill does
not change the substantive requirements for the classification
and treatment of classified information nor the requirements to
protect sources and methods.
Subsection (b) of section 3 requires the President to
prescribe procedures for all appropriate agencies, including
the intelligence community, to use information sharing systems
to provide both classified and sensitive, but unclassified
information, in accordance with subsection (a). Specifically,
homeland security information shall be shared with the
appropriate State and local personnel through information
sharing systems that: (1) have the capability to transmit
unclassified or classified information; (2) have the capability
to restrict delivery of information to specified subgroups by
geographic location, type of organization and position of a
recipient with an organization or a recipient's need to know of
such information; and (3) be accessible to appropriate State
and local personnel. These new systems should include existing
information sharing systems.
To protect privacy this subsection also requires that these
procedures must: (1) limit the redissemination of such
information to ensure that such information is not used for an
unauthorized purpose; (2) ensure the security and
confidentiality of such information; (3) protect the
constitutional and statutory rights of any individuals who are
subjects of such information; and (4) provide data integrity
through the timely removal and destruction of obsolete or
erroneous names and information.
Additionally, the systems must be accessible to appropriate
Federal agencies and appropriate State and local personnel. The
procedures shall ensure that State and local personnel have
been authorized to use such information sharing systems.
Furthermore, these systems should include existing information
sharing systems.
Subsection (c) of section 3 provides procedures for sharing
classified information with State and local personnel.
Subsection (d) of section 3 requires that the head of an
affected Agency designate an official to administer this act.
Subsection (e) of section 3 provides that Federal
information obtained by a State or local government from a
Federal agency shall remain under the control of the Federal
agency, and thus, not subject to State or local law authorizing
or requiring disclosure.
Subsection (f) of section 3 defines the terms ``homeland
security information,'' ``intelligence community,'' ``State and
local personnel,'' and ``State.''
SEC. 4. REPORT.
This section would require the President to report 6 months
after the date of enactment to the House and Senate Select
Committees on Intelligence and the House and Senate Judiciary
Committees on the implementation of this act.
SEC. 5. AUTHORIZATION OF APPROPRIATIONS.
This section authorizes appropriations of such sums as may
be necessary to carry out this act.
SEC. 6. AUTHORITY TO SHARE GRAND JURY INFORMATION.
Rule 6(e) of the Rules of Criminal Procedure prohibits the
disclosure of matters occurring before the grand jury, unless
the disclosure is covered under specified exceptions. Rule 6(e)
provides two types exceptions to the prohibition--(1) those
that do not require a court order for disclosure and (2) those
that do require a court order for disclosure. Exceptions that
do not require a court order are under rule 6(e)(3)(A).
Subparagraph (A) provides that disclosures otherwise
prohibited, may be made to the attorney for the Government for
use in the performance of his or her duty and to such personnel
as are deemed necessary by the attorney for the Government.
Rule 6(e)(3)(C) contains exceptions that generally require
a court order. One of the exceptions allows State and local
officials to receive Federal grand jury evidence when permitted
by a court and upon the show that the information relates to a
State crime.
The USA PATRIOT Act amended rule 6(e)(3)(C) to permit the
sharing of grand jury information that pertains to foreign
intelligence or counterintelligence, to a limited group of
Federal officials (including the President and Vice President),
so long as they are performing official duties. This section of
the bill would further amend rule 6(e) to permit the sharing
such information to law enforcement personnel of a State or
political subdivision of a State without a court order.
Specifically, this section would permit the disclosure of
foreign intelligence, foreign counterintelligence, foreign
intelligence information, and domestic threat information.
Domestic threat information is included because it is not
always clear whether threats to public safety result from
international or domestic terrorism threats. The anthrax
attacks are one example of where the origin of that attacks is
not clear. Additionally, this section allows for the
information to be shared with foreign government officials to
the same extent it may be shared with State and local
officials.
Current law, allows an attorney for the Federal Government
to disclose grand jury information to State and local officials
to assist in Federal criminal law matters under rule
6(e)(3)(A)(ii) and to share information related to a State
criminal matter with court approval under rule
6(e)(3)(C)(i)(IV). With the increase in international crime,
the Committee believes that there are situations where the
Federal attorney may need to disclose matters occurring before
a grand jury to foreign officials. In an April 24, 2002 letter,
the Department of Justice reasoned:
Foreign prosecutors or investigating courts seeking
evidence in the United States make request under mutual
legal assistance treaties or in letters rogatory
pursuant to 28 U.S.C. Sec. 1782. U.S. prosecutors
actively assist the foreign authorities to obtain the
evidence. On occasion, providing the evidence may
require disclosure of grand jury information. However,
even when the Government makes an appropriate showing
to the court (i.e., a showing similar to that required
for disclosure of grand jury material in a domestic
proceeding), the rule as currently written does not
expressly authorize courts to order disclosure. As a
consequence, the U.S. prosecutor sometimes must re-
subpoena the same information from the original
sources. That process is cumbersome, it may
unnecessarily inconvience the persons or entities that
already provided the informaiton to the grand jury, and
it is time-consuming. These difficulties and delays can
affirmatively impede the foreign investigation.
Moreover, certain evidence--such as witness testimony
or original documents--simply cannot be obtained
through alternative means. The foreign investigation
may thus be thwarted, even though the evidence is
available.
The Committee agrees that this clarification is necessary.
This section also would add new subclause (VI) to rule
6(e)(E)(C)(i) to deal with situations where the grand jury
information reveals a threat of attack, sabotage, terrorism, or
clandestine intelligence-gathering activities. This information
is similar to that listed under the definition of ``foreign
intelligence information'' under 50 U.S.C. Sec. 1801(e). This
section would include domestic terrorism as part of the
definition. Additionally, this section differs from the
provisions added in the USA PATRIOT Act because the information
could be shared with the ``appropriate'' State and local
officials upon a court order. In the USA PATRIOT Act, section
203(a) added rule 6(e)(3)(C)(i)(V) to allow disclosure of grand
jury matters to designated categories of Federal officials
rather than to ``appropriate'' officials. This bill, however,
contains safeguards against the misuse of this threat
information as it follows rule 6(e)(3)(C)(i)(IV), which only
permits disclosure for specified purpose. Here the specified
purpose is to prevent or respond to a threat. Additionally, the
recipients may only use the disclosed information in the
conduct of their official duties as is necessary and they are
subject to the restrictions for unauthorized disclosure--
including contempt of court.
SEC. 7. AUTHORITY TO SHARE ELECTRONIC, WIRE, AND ORAL INTERCEPTION
INFORMATION.
Section 18 U.S.C. Sec. 2510 et seq. limited disclosure and
dissemination of information obtained by or related to wire,
oral, or electronic surveillance to other investigative or law
enforcement officials. The USA PATRIOT Act amended the law to
allow foreign intelligence or counterintelligence information
(as defined in the National Security Act of 1945) that is
obtained as a result of a criminal investigation to be shared
with specified law-enforcement, intelligence, protective,
immigration, or national-defense personnel where they are
performing official duties.
Prior to this change, it was impossible for law enforcement
or criminal investigators to share information collected under
a criminal wiretap that related to foreign intelligence or
intelligence information without seeking court authority. This
limitation could have adversely affected a criminal or counter-
terrorism investigation where time is often of the essence.
While the USA PATRIOT Act made it clear that Federal law-
enforcement and investigation officials, without seeking court
authority, could share foreign intelligence information in the
performance of their official duties with other specified
Federal officials, the bill did not provide that State and
local law officials could receive this type of information.
This section would amend section 2517 of title 18 by adding
a new paragraph (7) to provide that State law enforcement
personnel and political subdivisions of the State may also
receive the information.
SEC. 8. FOREIGN INTELLIGENCE INFORMATION.
The USA PATRIOT Act also provided that notwithstanding any
other provision of law, it shall be lawful for foreign
intelligence or counterintelligence (as defined in section 3 of
the National Security Act of 1947 (50 U.S.C. 401a)) or foreign
intelligence information obtained as part of a criminal
investigation to be disclosed to Federal law enforcement,
intelligence, protective, immigration, national defense, or
national security officials in performance of their official
duties.
This section would amend section 203(d) of the USA PATRIOT
Act to include law enforcement personnel of a State or
political subdivision of State.
SEC. 9. INFORMATION ACQUIRED FROM AN ELECTRONIC SURVEILLANCE.
This section amends section 106(k)(1) of the Foreign
Intelligence Surveillance Act of 1978 (FISA) (50 U.S.C. 1806).
The USA PATRIOT Act added section 1806(k) to title 18 to allow
Federal officials conducting electronic surveillance under FISA
to consult with Federal law enforcement officers to investigate
and protect against specified foreign and national security
threats to the United States. This section would amend the law
to allow for State and local officials to participate in this
coordination.
SEC. 1O. INFORMATION ACQUIRED FROM A PHYSICAL SEARCH.
This section amends section 305(k)(1) of the Foreign
Intelligence Surveillance Act of 1978 (FISA) (50 U.S.C. 1825).
The USA PATRIOT Act added section 1825(k) to title 18 to allow
Federal officials conducting physical under FISA to consult
with Federal law enforcement officers to investigate and
protect against specified foreign and national security threats
to the United States. This section would amend the law to allow
for State and local officials to participate in this
coordination.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
SECTION 2517 OF TITLE 18, UNITED STATES CODE
Sec. 2517. Authorization for disclosure and use of intercepted wire,
oral, or electronic communications
(1) * * *
* * * * * * *
(7) Any investigative or law enforcement officer, or attorney
for the government, who by any means authorized by this
chapter, has obtained knowledge of the contents of any wire,
oral, or electronic communication, or evidence derived
therefrom, may disclose such contents or derivative evidence to
a foreign investigative or law enforcement officer to the
extent that such disclosure is appropriate to the proper
performance of the official duties of the officer making or
receiving the disclosure, and foreign investigative or law
enforcement officers may use or disclose such contents or
derivative evidence to the extent such use or disclosure is
appropriate to the proper performance of their official duties.
(8) Any investigative or law enforcement officer, or attorney
for the government, who by any means authorized by this
chapter, has obtained knowledge of the contents of any wire,
oral, or electronic communication, or evidence derived
therefrom, may disclose such contents or derivative evidence to
any appropriate Federal, State, local, or foreign government
official to the extent that such contents or derivative
evidence reveals a threat of actual or potential attack or
other grave hostile acts of a foreign power or an agent of a
foreign power, domestic or international sabotage, domestic or
international terrorism, or clandestine intelligence gathering
activities by an intelligence service or network of a foreign
power or by an agent of a foreign power, within the United
States or elsewhere, for the purpose of preventing or
responding to such a threat. Any official who receives
information pursuant to this provision may use that information
only as necessary in the conduct of that person's official
duties subject to any limitations on the unauthorized
disclosure of such information, and any State, local, or
foreign official who receives information pursuant to this
provision may use that information only consistent with such
guidelines as the Attorney General and Director of Central
Intelligence shall jointly issue.
* * * * * * *
----------
SECTION 203 OF THE UNITING AND STRENGTHENING AMERICA BY PROVIDING
APPROPRIATE TOOLS REQUIRED TO INTERCEPT AND OBSTRUCT TERRORISM ACT (USA
PATRIOT ACT) OF 2001
SEC. 203. AUTHORITY TO SHARE CRIMINAL INVESTIGATIVE INFORMATION.
(a) * * *
* * * * * * *
(c) Procedures.--The Attorney General shall establish
procedures for the disclosure of information pursuant to
[section 2517(6)] paragraphs (6) and (8) of section 2517 of
title 18, United States Code, and Rule 6(e)(3)(C)(i)(V) and
(VI) of the Federal Rules of Criminal Procedure that identifies
a United States person, as defined in section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801)).
(d) Foreign Intelligence Information.--
(1) In general.--[Notwithstanding any other provision
of law, it] It shall be lawful for foreign intelligence
or counterintelligence (as defined in section 3 of the
National Security Act of 1947 (50 U.S.C. 401a)) or
foreign intelligence information obtained as part of a
criminal investigation to be disclosed to any Federal
law enforcement, intelligence, protective, immigration,
national defense, or national security official in
order to assist the official receiving that information
in the performance of his official duties. Any Federal
official who receives information pursuant to this
provision may use that information only as necessary in
the conduct of that person's official duties subject to
any limitations on the unauthorized disclosure of such
information. It shall be lawful for information
revealing a threat of actual or potential attack or
other grave hostile acts of a foreign power or an agent
of a foreign power, domestic or international sabotage,
domestic or international terrorism, or clandestine
intelligence gathering activities by an intelligence
service or network of a foreign power or by an agent of
a foreign power, within the United States or elsewhere,
obtained as part of a criminal investigation to be
disclosed to any appropriate Federal, State, local, or
foreign government official for the purpose of
preventing or responding to such a threat. Any official
who receives information pursuant to this provision may
use that information only as necessary in the conduct
of that person's official duties subject to any
limitations on the unauthorized disclosure of such
information, and any State, local, or foreign official
who receives information pursuant to this provision may
use that information only consistent with such
guidelines as the Attorney General and Director of
Central Intelligence shall jointly issue.
* * * * * * *
----------
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978
* * * * * * *
TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN
INTELLIGENCE PURPOSES
* * * * * * *
USE OF INFORMATION
Sec. 106. (a) * * *
* * * * * * *
(k)(1) Federal officers who conduct electronic surveillance
to acquire foreign intelligence information under this title
may consult with Federal law enforcement officers or law
enforcement personnel of a State or political subdivision of a
State (including the chief executive officer of that State or
political subdivision who has the authority to appoint or
direct the chief law enforcement officer of that State or
political subdivision) to coordinate efforts to investigate or
protect against--
(A) * * *
* * * * * * *
TITLE III--PHYSICAL SEARCHES WITHIN THE UNITED STATES FOR FOREIGN
INTELLIGENCE PURPOSES
* * * * * * *
Sec. 305. (a) * * *
* * * * * * *
(k)(1) Federal officers who conduct physical searches to
acquire foreign intelligence information under this title may
consult with Federal law enforcement officers or law
enforcement personnel of a State or political subdivision of a
State (including the chief executive officer of that State or
political subdivision who has the authority to appoint or
direct the chief law enforcement officer of that State or
political subdivision) to coordinate efforts to investigate or
protect against--
(A) * * *
* * * * * * *
Markup Transcript
BUSINESS MEETING
THURSDAY, JUNE 13, 2002
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:00 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
Chairman Sensenbrenner. The Committee notes the presence of
a working quorum. To begin the Chair will announce that he has
designated the gentleman from Wisconsin, Mr. Green, as Vice
Chairman of the Crime, Terrorism, and Homeland Security
Subcommittee. First up today--well, I must start this markup
with sad news. The Chairman of the Subcommittee on Crime,
Terrorism, and Homeland Security, the gentleman from Texas, Mr.
Smith, is unable to be with us because his father, Campbell
Smith, died last Friday. I believe we all offer our condolences
to him and his family. And Mr. Smith has asked Mr. Green to
speak on his behalf for the Subcommittee today.
Now, I would like to ask unanimous consent as far as
Subcommittee assignments are concerned, because we have had the
appointment of Mr. Forbes of Virginia as a new Member of the
Committee. I would ask unanimous consent that the gentleman
from Virginia, Mr. Forbes is appointed to the Subcommittee on
the Constitution and on Immigration and Claims. The gentlewoman
from Pennsylvania, Ms. Hart, is removed from the Subcommittee
on Commercial and Administrative Law. The gentleman from
Indiana, Mr. Pence, is appointed to the Subcommittee on Crime,
Terrorism, and Homeland Security, and also on Commercial and
Administrative Law.
As previously stated Mr. Green is appointed as Vice
Chairman of the Subcommittee on Crime, Terrorism, and Homeland
Security. Is there any objection to these assignments? And
hearing none, so ordered.
I also ask unanimous consent that the Subcommittee on
Immigration and Claims be renamed the Subcommittee on
Immigration, Border Security, and Claims. And without
objection, that change in title is agreed to as well.
The next item on the agenda is H.R. 4598, the ``Homeland
Security Information Sharing Act.''
[The bill, H.R. 4598, follows:]
Chairman Sensenbrenner. The Chair recognizes the gentleman
from Wisconsin, Mr. Green, Vice Chairman of the Subcommittee on
Crime, Terrorism, and Homeland Security, for a motion.
Mr. Green. Thank you, Mr. Chairman. Mr. Chairman, the
Subcommittee on Crime, Terrorism, and Homeland Security reports
favorably the bill H.R. 4598 with a single amendment in the
nature of a substitute, and moves its favorable recommendation
to the full House.
Chairman Sensenbrenner. Without objection, the bill will be
considered as read and open for amendment at any point.
[The amendment follows:]
Chairman Sensenbrenner. The Subcommittee amendment in the
nature of a substitute which the Members have before them will
be considered as read and considered as the original text for
purposes of amendment and open for amendment at any point. The
Chair yields himself 5 minutes for purposes of making an
opening statement. This Committee has greatly improved
information sharing between Federal law enforcement and the
intelligence community last year with the passage of the
PATRIOT Act, yet further cooperation is still needed. Because
State and local officials will be the first to respond to a
terrorist attack, we need to create procedures so that
appropriate State and local officials will receive the
information they need to understand, prevent, detect and
disrupt terrorist threats.
Often this information is classified, so we must provide a
way to provide this information quickly and efficiently while
protecting the classified sources and methods of obtaining the
information. Understanding the complexity of sharing classified
and law enforcement sensitive information, this Committee
worked with the Committee on Intelligence to produce this
legislation. It will facilitate the sharing of homeland
security information with State and local officials by
directing the Administration in developing procedures to
sanitize classified information so that it can be shared in an
unclassified form.
If the information cannot be sanitized, the bill directs
the administration to develop procedures to share classified
information while protecting that information. I believe this
bill is vital to improving homeland security. I urge my
colleagues to support this bill. Does the gentleman from
Virginia, Mr. Scott, who is the Ranking Member on the
Subcommittee, have an opening statement? The gentleman is
recognized for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman, for holding this markup
on Homeland Security Information Sharing Act. Just as with the
U.S.A. PATRIOT Act on sharing sensitive protected information
among Federal agencies, I think the challenge we face in
sharing such information with local government authorities is
the same, getting critical information in a timely manner to
authorities who need it in order to effectively prevent or
address terrorism through proactive strategies, while at the
same time, protecting the privacy and freedoms of our citizens.
In so doing, we must be vigilant that we not only
accomplish for would-be terrorists what they cannot accomplish
on their own and that is, we don't want to diminish our
freedoms and our cherished way of life. From my experience in
assessing and debating the USA PATRIOT Act, I am concerned that
we have gone too far in the area of restricting liberties and
privacy of law-abiding citizens under the rubric of preventing
and fighting terrorism. There is little debate over empowering
our intelligence and law enforcement forces to prevent and
fight terrorism. The debate is whether these extraordinary
powers and discretions we give to prevent and fight terrorism
can and will be used on very ordinary street crimes or other
undesirable activities where these extraordinary powers may not
be appropriate.
The bill before us is not as much at issue as the
regulations which will be formulated based on this legislation.
I am concerned that without sufficient guidelines, the delicate
balance we must strike between sharing critical information
with State and local officials needed to prevent and fight
terrorism and maintaining the privacy and liberties of our
citizens will be jeopardized. I will be particularly concerned
in this regard if we authorize the sharing of even more
sensitive information than the President has at his command,
such as sharing grand jury testimony and information from wire
and electronic wiretaps without sufficient guidelines to
protect citizens to discourage and address improper disclosures
of sensitive private information.
So if any such--so with any such additions, I would hope
that we would also include provisions to ensure these concerns
and the concerns that when we focus on antiterrorism instead of
ordinary street crime, we address the regulations implementing
the information sharing. Thank you, Mr. Chairman.
Chairman Sensenbrenner. Without objection, all Members may
insert opening statements in the record at this point. Are
there any amendments?
Ms. Jackson Lee. Mr. Chairman I have an amendment at the
desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Mr. Chairman, there are two amendments.
Ms. Jackson Lee. Do the 236 or the one that is at 2(b). I
have two amendments. Thank you.
The Clerk. Amendment to H.R. 4598 offered by Ms. Jackson
Lee of Texas, insert 2(b) of the bill, strike the period at the
end and insert----
Chairman Sensenbrenner. Without objection the amendment is
considered as read and the gentlewoman from Texas is recognized
for 5 minutes.
[The amendment follows:]
Ms. Jackson Lee. I thank the gentleman very much. I have
two amendments that I hope my colleagues will be able to join
me on, that really just add to many of the discussions that all
of us have had with respect to homeland security, and that is
to ensure the outreach to the local communities and first
responders. This simply says with special emphasis on hard to
reach urban and rural communities just to make sure that those
places that may not even have sufficient number of first
responders and others in the area or the ability to receive
information quickly, that we do have them on our mind and we
make an effort to reach out to provide and disseminate
information to these particular entities. I would ask my
colleagues to support this amendment.
Chairman Sensenbrenner. Gentleman from Wisconsin, Mr.
Green.
Mr. Green. Thank you Mr. Chairman this seems to be a
reasonable amendment and I have no objection to it.
Chairman Sensenbrenner. Question is on the agreeing to the
amendment offered by the gentlewoman from Texas, Ms. Jackson
Lee. Those in favor will say aye. Opposed no. The aye appears
to have it. The aye has it and the amendment is agreed to.
Ms. Jackson Lee. I have another amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 4598 offered by Ms. Jackson
Lee of Texas, insert 3(e), 3(f) of the bill, strike----
Chairman Sensenbrenner. Without objection the amendment is
considered as read and the gentlewoman from Texas is recognized
for 5 minutes.
[The amendment follows:]
Ms. Jackson Lee. Thank you very much, Mr. Chairman. In the
last couple of days listening to the President, listening to
Governor Ridge, we have recognized the broadness of the issues
dealing with homeland security. I very much appreciate the
emphasis on cyber and economic security, but as well, I believe
that one of the other major issues that we face, particularly
with anthrax, is health security and a simple amendment just
indicates employees of private sector entities that affect
critical infrastructure, cyber, economic or health security. I
would ask my colleagues to support that amendment.
Chairman Sensenbrenner. The gentleman from Wisconsin.
Mr. Green. Would the gentlelady yield to a question?
Ms. Jackson Lee. Yes.
Mr. Green. I am not sure I understand precisely what health
security means. Could you define that term.
Ms. Jackson Lee. For example, one of the issues we
discussed in the immigration area is the border and the full
coming across the border, for example, and to be able to ensure
that it is not contaminated and that is one of the areas that
would similarly fall under our jurisdiction. So health is just
the broad-based health of the Nation.
Mr. Green. If the lady will further yield. Would the
gentlelady be willing to work with us on the terminology of
health security so we define that more specifically. Health
security is a broad term. You made reference to food security
in particular which I agree with you on, but what I would like
to do is develop language that clarifies that term a little bit
so we understand precisely what is being asked of us.
Ms. Jackson Lee. I would welcome the gentleman. Is it
possible because it is just a minor amendment to add maybe
public health or refine it so that would make you feel more
comfortable.
Chairman Sensenbrenner. Without objection the amendment is
modified to include the word ``public'' before health so it is
public health security. Hearing no objection, the amendment is
so modified.
Mr. Green. Mr. Chairman?
Chairman Sensenbrenner. Does the gentlelady yield back the
balance of her time?
Ms. Jackson Lee. I yield back.
Chairman Sensenbrenner. Gentleman from Wisconsin.
Mr. Green. Thank you, Mr. Chairman. Move to strike the last
word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Green. With that change in terminology, I have no
objections to this amendment.
Ms. Jackson Lee. If the gentleman would yield, thank you
very much.
Chairman Sensenbrenner. The question is agreeing to the
second amendment as modified, those in favor will say aye.
Opposed no. The ayes appear to have it, the ayes have it and
the amendment is agreed to. Are there further amendments? The
gentleman from Wisconsin.
Mr. Green. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Mr. Chairman, Mr. Green has two amendments.
Chairman Sensenbrenner. There are two amendments. Which one
does the gentleman from Wisconsin wish to offer first?
Mr. Green. The first one.
The Clerk. Amendment to H.R. 4598 offered by Mr. Green of
Wisconsin, page 1, line 13, strike sensitive and insert----
Mr. Green. Unanimous consent that the amendment be
considered as read.
[The amendment follows:]
Chairman Sensenbrenner. Without objection, so ordered. The
gentleman is recognized for 5 minutes.
Mr. Green. Thank you, Mr. Chairman. Mr. Chairman, I am
offering an amendment to H.R. 4598 to make a few additional
technical changes at the request of the Office of Homeland
Security that will we believe further strengthen this bill. The
amendment clarifies some of the findings of fact in section 2.
This amendment would also modify section 3, sub (a) of the
bill. Section 3, sub (a) directs the President to prescribe
procedures to determine the extent to which information may be
shared. This amendment would add that procedures should be
established to identify and safeguard homeland security
information that is sensitive, but not classified.
Additionally, the amendment would add a new subparagraph to
section 3, that requires any information disclosed to a State
or local government from a Federal agency would remain under
the control of the Federal Government and would not be subject
to State disclosure laws. This would help to protect classified
information as well as privacy. These changes are more
technical in nature but they are needed for clarification. With
that I ask my colleagues to support the amendment. I yield back
my time.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from Wisconsin, Mr. Green. Those in
favor will say aye. Opposed no. The ayes appear to have it the
ayes have it and the amendment is agreed to. The gentleman from
Wisconsin have a second amendment?
Mr. Green. No.
Chairman Sensenbrenner. Are there further amendments. The
gentleman from North Carolina.
Mr. Watt. Mr. Chairman I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to----
Mr. Watt. Ask unanimous consent that the amendment be
considered as read.
The Clerk.--section 3(b) of the bill, insert after
paragraph 2----
Mr. Watt. Ask unanimous consent that the amendment be
considered as read.
Chairman Sensenbrenner. Without objection the amendment is
considered as read and the gentleman from North Carolina is
recognized for 5 minutes.
[The amendment follows:]
Mr. Watt. Thank you, Mr. Chairman. This amendment was
drafted by legislatively drafting, and for some reason, they
didn't put the page number on it. We are dealing with page 5--I
am sorry, page 6 after line 11, a new paragraph would be
inserted that would be number 3 and the subsequent paragraphs
there, they are now numbered 3 and 4 and further would be
renumbered. The bill sets up a process by which the President,
under language on pages 4 and 5 of the bill, sets up some
general guidelines for use of homeland security information,
and then the director of the CIA and the Attorney General
starting at the middle of page 5 and going over to page 6, give
more detail to the general process that the President has
prescribed for dealing with this information.
This amendment simply adds some additional things that the
director of the CIA and Attorney General would be required to
prescribe regulations about, including procedures to limit the
redissemination of information that is being shared, procedures
to ensure that such information is used solely for the purposes
for which the information was shared, procedures to ensure the
accuracy, security and confidentiality of such information,
procedures to protect the privacy rights of any individuals who
are subjects of such information and procedures to provide data
integrity through the timely removal and destruction of
obsolete or erroneous names and information.
Basically what we are trying to get the CIA and the
Attorney General to do is to do some additional things in
addition to those prescribed in the bill currently. We have
vetted this language with Mr. Chambliss and Ms. Harman, the two
lead sponsors of the--of this legislation. And I have an e-mail
from Ms. Harman's staff which reads, thanks for sending this
proposal over. I just chatted with Mr. Chambliss' staff on the
bill and we both agree that the amendment looks good to us so I
don't think we are doing anything that is inconsistent with
what they intended to do or anything that is revolutionary.
We just think that there are some additional things that
the CIA and the Attorney General, in furtherance of the
guidelines that the President--general guidelines that the
President gives them should be trying to assure and those
things are set out in the amendment. So I encourage my
colleagues to support the amendment and yield back the balance
of my time.
Chairman Sensenbrenner. Gentleman from Wisconsin.
Mr. Green. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Green. Thank you, Mr. Chairman. Mr. Chairman, I think
we all agree with the ideas behind Mr. Watt's amendment.
However, I must oppose it for a couple of reasons. First off,
the gentleman refers to conversations that he has had with Ms.
Harman, and I believe Mr. Chambliss. We have not heard from
them on our side--the Subcommittee and the Committee has not
heard from them. Secondly, much of what this amendment would
seek to do, we already do. There are already penalties for
disclosing protected information in the criminal code and in
the Privacy Act. Additionally, there are penalties for
disclosing grand jury information. To be honest, I think much
of what Mr. Watt has in his amendment is redundant.
Mr. Watt. Would the gentleman yield on that point?
Mr. Green. If I could finish my statement. Instead, we have
a substitute amendment. That amendment would amend section 4 of
the bill to add a requirement that the Administration report on
the existing privacy protections as well as any new ones which
they plan to implement, and I would hope you would be able to
join us in that amendment. And with that, I would be happy to
yield.
Mr. Watt. First of all, I appreciate the spirit in which
the gentleman is approaching this, but I would say two things:
Number one, this amendment doesn't do anything about penalties
that are in the underlying law. We are not trying to prescribe
any penalties. What we are trying to do is get the CIA and the
Attorney General to set up some guidelines and requirements on
the use of data so that you won't even be worrying about what
the standards are to trigger penalties. Right now there are
really no guidelines in place, and I thought that was the
purpose of this bill. There are certainly no guidelines in
place for the sharing of information.
Mr. Green. Reclaiming my time. We believe there are. There
are procedures and guidelines in place not just penalties. The
gentleman nudged me in the right direction. This doesn't just
deal with penalties. It also does deal with procedures and
guidelines for information sharing. And again, we believe that
while the intentions are sound, the gentleman's amendment is
redundant to what is already prescribed, and therefore
unnecessary. And what we would hope is that the amendment that
I would put forward would lay out precisely what the
Administration would do in terms of privacy protection and also
lay out for us any privacy protections they plan to implement.
And with that I yield back.
Mr. Watt. Would the gentleman yield?
Mr. Green. I guess with the remaining time I have, I would
like to go ahead and offer my amendment. So I have a Green
number 2, Mr. Chairman, at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Mr. Scott. Mr. Chairman, point of order.
Mr. Watt. Is this a substitute or----
Chairman Sensenbrenner. The gentleman from Virginia has a
point of order.
Mr. Scott. I was asking whether this was a substitute
amendment or an amendment to the amendment?
Mr. Green. It is a substitute amendment.
Chairman Sensenbrenner. It is a substitute.
Mr. Watt. I would like to reserve a point of order. The
point of order is reserved and the clerk will report the
amendment. The point of order is reserved by the gentleman from
North Carolina.
The Clerk. Amendment offered by Mr. Green of Wisconsin to
H.R. 4598. On page 10, line 5, insert after the word
``entities,'' the report shall also include a description of
the existing protections of privacy and any new protections the
Administration plans to implement.
Chairman Sensenbrenner. The gentlewoman from Wisconsin is
recognized for 5 minutes and the point of order is reserved.
The gentleman from Wisconsin.
[The amendment follows:]
Mr. Green. Thank you, Mr. Chairman. I will be very brief.
As indicated previously, this substitute amendment would amend
section 4 of the bill to add a requirement that the
Administration report on the existing privacy protections as
well as any new ones that they would plan to implement. This
way we would identify very clearly what the guidelines and
protections that are in place and what the Administration's
plans are in going forward. Thank you, Mr. Chairman. I yield
back my time.
Chairman Sensenbrenner. The gentleman from North Carolina
insist upon his point of order?
Mr. Watt. Yes, Mr. Chairman.
Chairman Sensenbrenner. The gentleman will state his point
of order.
Mr. Watt. My point of order is that this amendment, while
it may be good, has nothing to do with the underlying
amendment. It deals with an entirely different subject matter
in a different section of the bill, and therefore would have no
germaneness to the underlying amendment for which it is being
offered as a substitute. So I don't really have any objection
to the gentleman's amendment, it just doesn't have anything to
do with the subject matter of the underlying amendment.
Chairman Sensenbrenner. Other Members wish to be heard on
the point of order? Gentleman from Wisconsin.
Mr. Green. Thank you, Mr. Chairman. To speed this along, I
will withdraw my amendment.
Chairman Sensenbrenner. The amendment is withdrawn. The
question is on agreeing to the amendment offered by the
gentleman from North Carolina, Mr. Watt.
Mr. Watt. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the gentleman
from Virginia, Mr. Scott, seek recognition?
Mr. Scott. Move to strike the last word.
Chairman Sensenbrenner. Gentleman is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, I rise in support of the
amendment. What it does is outline some very important factors
that were brought up in the hearing, how this information will
be redisseminated, whether it can be used for purposes other
than the purpose for which it was disseminated, how you ensure
the accuracy, protecting privacy rights. All of these issues
came up and I think it is important that the Administration
outline how this information is going to be protected before it
gets out. I mean, a penalty after the fact is a woefully
inadequate remedy for information that can be extremely
sensitive, personal, defamatory, and it is being let out in
such a way that you have no way of defending yourself. Rumor
gets out that you have committed crimes, there is no trial,
there is no nothing. Your integrity, your reputation has been
sullied. And even if somebody gets punished, that doesn't help
you. I would hope that we would adopt the amendment. The fact
is that the Administration will draft the language based on
this. Whatever they do will be workable. We just want to make
sure that they address--doesn't tell them it has to be limited,
just conditions--shall establish conditions on how you are
going to redisseminate the information. The Administration will
decide, and I would hope we will give them the flexibility, but
also require they address these issues. I yield back.
Chairman Sensenbrenner. For what purpose does the gentleman
from California, Mr. Gallegly, seek recognition?
Mr. Gallegly. Strike the last word, Mr. Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Gallegly. At this point I would yield to the gentleman
from Wisconsin, Mr. Green.
Mr. Green. I thank the gentleman for yielding. Just very
briefly, we just had a communication from Mr. Chambliss' office
and they indicated that Mr. Chambliss did not agree to this
amendment or to this language. Just so the Committee Members
are aware of that, Mr. Chambliss, the author of the bill, does
not agree to this language and I thank the gentleman for
yielding.
Mr. Gallegly. Yield back, Mr. Chairman. For what purpose
does the gentlewoman from California wish to be recognized?
Ms. Lofgren. Strike the last word.
Chairman Sensenbrenner. The gentlewoman from California is
recognized.
Ms. Lofgren. Mr. Chairman, I as you know was very active in
the drafting of the PATRIOT Act, and believe we must be
vigorous in the fight against terrorism, but it seems to me
that the amendment offered by Mr. Watt is very carefully
crafted and very balanced, and would not at all interfere with
our mutual objective of making a safer America, and I would
yield to Mr. Watt for further comment.
Mr. Watt. Mr. Chairman, let me make a couple of points.
Number one, the PATRIOT Act dealt with--if we were only dealing
with what was in the PATRIOT Act, this whole bill wouldn't be
necessary. This is a step beyond the PATRIOT Act designed to
set up a process for sharing of information that is obtained
under the PATRIOT Act with other law enforcement agencies and
governmental bodies.
So to argue that there is something in the PATRIOT Act that
deals with the issues that are raised in this amendment really
misses the point because this bill doesn't deal with what is in
the PATRIOT Act. It deals with setting up a regimen for sharing
of information that is obtained under the PATRIOT Act.
Second, lest there be some misunderstanding, I am holding
in my hand an e-mail from Ms. Harman's office now--and I am
happy to submit that for the record, which I read.
Chairman Sensenbrenner. Without objection.
Mr. Watt.--that I read to the Committee, which says that
her office just chatted with Mr. Chambliss' staff and we both
agree that this amendment looks good to us. Now I am--hell, I
have no interest in coming in here and misrepresenting to this
Committee. I haven't talked to Mr. Chambliss. I assume his
staff is talking to him. But I mean, to turn this into some
kind of partisan divide here on an issue which is very
straightforward and very balanced, seems to me to be just
unjustified, and I yield back.
Mr. Frank. Would the gentlewoman yield to me?
Ms. Lofgren. I would yield.
Mr. Frank. Whether or not there was information sharing
among Mr. Chambliss and his staff is, of course, not within our
jurisdiction. I was the sponsor of one of the amendments, and I
am grateful to the Chairman for working closely with me for the
amendment that was adopted to protect privacy in the PATRIOT
Act and the Chairman's support was very helpful and that is to
establish a means by which people about whom information is
surveilled and improperly released could sue and get some
damages. And I think that is helpful and I am glad it is there.
But I have to say as a sponsor of one of the amendments
that was adopted dealing with privacy, it was never intended by
me or would I argue that it filled the four corners. And it is
totally not only consistent with the gentleman's amendment, but
the gentleman's amendment fills gaps that it never was intended
to fill. So I would hope that the amendment could be adopted.
Let me say, we have this dilemma. We all agree there should
be more surveillance. The problem is the fear that some people
have of misuse of the surveilled information. The gentleman's
amendment is really trying to help law enforcement. What he is
trying to do, I think, is it is clear to reassure people that
we are capable of doing surveillance where we should, but of
protecting people from having that misused.
And the fact that people would oppose this amendment really
troubles me because I think it just gives aid and comfort to
those who want to block the law enforcement powers because we
then can't say look, we are doing everything we can to protect
you. I do not understand what objection there could be to any
single item on this list and I thank the gentlewoman for
yielding.
Ms. Lofgren. Thank you. And I would yield further to Mr.
Watt.
Mr. Watt. I, for the life of me, don't understand what the
opposition is about either. I just--you have got a regimen
under the PATRIOT Act that governs the Federal Government. This
bill is designed to govern the sharing of information with
other agencies and what we are trying to do is put the same
regimen or put some regimen into effect. The rules are going to
be written by the CIA and the Attorney General, so I am not
trying to write the rules. I am just saying you need some rules
to prevent redissemination of this information, and to do the
same things in the sharing of information that we do under the
PATRIOT Act. This is the same language that is in the Border
Security Act. I mean, we picked up the same language. So we are
not trying to do anything sinister here.
Chairman Sensenbrenner. The time of the gentlewoman has
expired. There is more debate. We have two votes, one on the
rule and one on the journal. The Committee will be in recess.
It is the Chair's hope that we will be able to resume our
sitting as soon as a working quorum appears after the two
votes. The Committee stands in recess.
[Recess.]
Chairman Sensenbrenner. The Committee will be in order. A
working quorum is present. Pending at the time of the recess
was an amendment offered by the gentleman from North Carolina,
Mr. Watt. There appears to have been an agreement on language.
For what purpose does the gentleman from Wisconsin Mr. Green
seek recognition?
Mr. Green. Mr. Chairman, I would like to offer an amendment
to the amendment.
Chairman Sensenbrenner. The clerk will report the Green
amendment to the Watt amendment.
The Clerk. Amendment offered by Mr. Green of Wisconsin to
the amendment offered by Mr. Watt of North Carolina.
Chairman Sensenbrenner. Without objection, the amendment is
considered as read and the gentleman from Wisconsin is
recognized for 5 minutes on behalf of his amendment to the
amendment.
[The amendment follows:]
Mr. Green. Thank you, Mr. Chairman. Between the votes that
we cast and this moment, I think a number of us had a chance to
talk to the primary authors of this legislation and I think the
general consensus was that there may be a legitimate reason for
redissemination of information and therefore a legitimate
reason for some of the concerns that Mr. Watt has raised. The
purpose of the language in the amendment that I offer to Mr.
Watt's amendment is to assure that dissemination is not made
for unauthorized purposes, which I believe captures the intent
of what Mr. Watt is trying to do. The first change reflects
this. I would strike the word ``accuracy'' in our amendment,
because we are talking about threat information, and accuracy
is not necessarily a term that can be guaranteed.
For instance, a bridge will be blown up in a major city, we
may not know if the information is accurate. Finally, I would
replace the word ``privacy'' with the term ``constitutional.''
in any case, this appears to be language that the two main
authors of the bill as well as Mr. Watt have all come to a
consensus on. Although Mr. Chambliss and Ms. Harman have not
seen the precise terminology, they have agreed to the concept
and they will have a chance after this before we go to the
floor. So I yield back my time.
Mr. Watt. Thank you, Mr. Chairman. I move to strike the
last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. First of all, I would like to express my thanks
to Mr. Green and to Mr. Scott and Mr. Chambliss and Ms. Harman
in absentia. We had good conversation on the floor about what
everybody was trying to accomplish. I think we are all in
agreement that something needs to be in this bill. Mr.
Chambliss and Ms. Harman both were concerned that we don't
create a bureaucracy that slows down the process of evaluation
of information. I am fully in accord with that, and actually
had agreed with them that I would withdraw the amendment. It
turned out that we got to some language that we could put into
the bill. And if they object to it later, then we can get their
input into it and revise it some more. So I think does exactly
what we want to do and does it with better language in fact now
that I have read what has been proposed. So I am fully in
accord with it and encourage my colleagues to support it.
Chairman Sensenbrenner. The question is on the Green
amendment to the Watt amendment. Those in favor will say aye.
Opposed no. The ayes appear to have it, the ayes have it. The
amendment to the amendment is agreed to. The question now is on
the Watt amendment as amended. Those in favor will say aye
opposed no. The ayes appear to have it the ayes have it and the
amendment as amended is agreed to. Are there further
amendments. Gentleman from New York, Mr. Weiner?
Mr. Weiner. Mr. Chairman, I have amendment 36 at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 4598 offered by Mr. Weiner. In
section 4----
Mr. Weiner. Request unanimous consent that the amendment be
considered as read, Mr. Chairman.
Chairman Sensenbrenner. Without objection the amendment is
considered as read. The gentleman from New York is recognized
for 5 minutes.
[The amendment follows:]
Mr. Weiner. Thank you, Mr. Chairman. Mr. Chairman, last
year when anthrax was discovered at the NBC studios in New
York, we discovered quite accidentally that there is a dramatic
gap in the disclosure and information sharing laws that
prohibit Federal agencies from sharing information that they
get, tips about terrorist attacks and or crimes that are
pending if their information is gathered by the Federal
Government via a wiretap or grand jury testimony.
It wasn't until days after that the anthrax was discovered
in New York that authorities in New York were notified of its
presence. Right now, if there is a wiretap surveillance or
grand jury testimony that reveals there will be a terrorist
threat in the New York City subway system, the law not only
does not require that that information be shared with officials
in New York City or any other city, but it prohibits them from
doing so if it comes from these two sources.
My amendment seeks to amend that, to close that loophole.
It does not require the sharing of information. It simply calls
upon the Attorney General to come up with appropriate
confidentiality guidelines and then permits the sharing of that
information if it is deemed appropriate. This has been an
amendment that was drafted with bipartisan consideration. It is
a bipartisan effort in the Senate.
Mr. Conyers, Chairman Smith, who I thank in absentia for
his support, and also the Bush administration has reviewed the
amendment and has expressed support for it. There is obviously
much greater need for information to go back and forth between
different levels of government. I don't think every piece of
information should be shared with local authorities. But when
it is appropriate, we certainly should remove the barriers that
exist that make it illegal for an agency like the CIA or the
FBI or the Justice Department to share information with cities
like mine and the ones we all represent.
Frankly if that scenario that I described for you, if it
were grand jury testimony or someone said there was going to be
a dirty bomb detonated in the subways of New York City,
frankly, it would have to be the Federal Bureau of
Investigation officers only that went and responded to that
threat and took up posts in the New York City subway system
where, frankly, I am not sure they would be safe.
So I think this legislation allows New York City agencies
and police departments as well as any other local law
enforcement agency could be notified as a result of this. And I
yield back the balance of my time.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress From the State of Michigan
I am happy to support this amendment which would provide for
information sharing between federal and state and local authorities.
I believe that providing state and local officials with this type
of information will help us thwart future acts of terrorism. State and
local personnel are the most likely individuals to interdict
terrorists--as demonstrated by the detainment of Ahmed Ressam on the
Canadian border and the routine traffic stopping of one of the 9/11
terrorists by a Maryland state trooper. As we have learned in the last
several weeks, if we had shared more information before the attacks, we
may have been able to more aggressively intervene against the terrorist
plot.
The amendment will also help state and local officials prepare an
appropriate response to future attacks. Every act of terrorism is
local--occurring in a neighborhood, city or state near you or someone
you know. Often times, officials at the state and local level are
first-line responders to these attacks.
Having said this, I must admit that the amendment is not perfect. I
would prefer that it be limited to possible acts of terrorism. The
amendment applies to some of the most sensitive information at our
government's disposal, including wiretap information, grand jury
information, and foreign intelligence information. If we are going to
take the extraordinary step of sharing this information, it should be
limited to the threat of terrorism.
Second, I would hope that we could provide some safeguards so that
once the information is disclosed there are security measures in place
to guard against improper disclosure and to punish such disclosure. The
last thing we would want is for the newly shared information to be used
to harm an innocent person's reputation.
It is my hope that these concerns can be addressed as we move this
legislation to the House floor and in conference with the Senate. But I
believe this amendment offers us a good starting point to improve our
nation's defenses against terrorism.
Chairman Sensenbrenner. Gentleman from Wisconsin, Mr.
Green.
Mr. Green. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Green. Thank you, Mr. Chairman. Mr. Chairman, on behalf
of Chairman Smith, let me say that I am pleased that Mr. Weiner
offered his amendment. The Weiner amendment does not mandate
the sharing of information, but rather removes the barriers to
doing so. The discretion will still remain with the Federal
entity which possesses the information. The amendment also
includes the direction to the Attorney General and the CIA
director to promulgate appropriate confidentiality guidelines
for the use of such information with which State and local
officials must then comply.
This is, as Mr. Weiner has already stated, a bipartisan
proposal whose leading proponents include former Mayor Rudolph
Giuliani, Senator Orrin Hatch, Congressman Vito Fossella. I am
also pleased that Mr. Weiner's amendment reflects the
suggestions of the Justice Department, which has, in turn,
endorsed this proposal. Therefore I urge my colleagues to
support this amendment.
Chairman Sensenbrenner. The question is--who seeks
recognition. Gentleman from Massachusetts, Mr. Delahunt.
Mr. Delahunt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Delahunt. I won't take the 5 minutes. I don't have a
problem with the sharing of information developed pursuant to a
court authorized wiretap because I am sure many of these
investigations are probably done pursuant to the concept of a
task force, where you have local and State agencies involved.
And it is clear that this amendment is going to pass. I just
wanted to express my profound concern about the expansion of--
that this amendment does in terms of the sharing of
information. We broke, really, a long-term precedent back in
the aftermath of 9/11 when we authorized the sharing of grand
jury information to very well-defined, enumerated Federal
investigatory officials. Now we are expanding it even further
or allowing that expansion. I think it is something that could
easily portend tremendous abuse, and I just want to say that
for the record, and I yield back.
Mr. Weiner. I would like to point out that the language
that Mr. Frank and the Chairman included about increasing the
civil liability for anyone leaking information to an
inappropriate source would still apply to this information as
well. I know that might not provide comfort in the context of
this broader issue.
Mr. Delahunt. Reclaiming my time, I understand that the
Frank amendment to the Patriot Act I think was important, but
this is, let's be very, very clear, a dramatic departure from
American criminal jurisprudence. I think it is something that
is a prescription for abuse, and I just simply want to express
myself--and I know that the amendment is well intended. Let me
say this:
The disclosure of grand jury information--if we are at that
point, I dare say we are in real trouble. Because I would
suspect that, prior to testimony in front of a grand jury, the
information that the gentleman is seeking via amendment would
be made--has already been made available to local and State
officials. I just think that what we are doing here is we are
diminishing the traditional concept of what a grand jury is
about in our jurisprudence. I think it is dangerous.
I yield to Mr. Scott.
Mr. Scott. Thank the gentleman for yielding.
I would like to say to the gentleman that I share some of
the same concerns and would hope, as the bill goes forward,
that we make sure that the information that is being
disseminated is actually information on terrorism and not just
run-of-the-mill information. It is important information. As
the gentleman has suggested, the information that can come out
of a grand jury or some of the other homeland security
information can be good rumor or innuendo.
We have regulations on grand juries, we have regulations on
classified information, we have regulations on privacy, but
this bill includes homeland security information which is just
about anything. So long as it is restricted to the narrow range
of terrorism and that is what it is being used for, then that
may override the privacy concerns. We need to make sure that it
doesn't become a run-of-the-mill information sharing, where
everybody in town gets to know what the local rumor is and the
person subject to the rumor has no opportunity to clarify the
record, say he wasn't the right one, they confused me with
somebody else or otherwise totally innocent of the rumor.
I yield back. Thank you very much.
Chairman Sensenbrenner. The time belongs to the gentleman
from Massachusetts.
Mr. Delahunt. Yield back.
Chairman Sensenbrenner. For what purpose does is the
gentleman from California, Mr. Schiff, seek recognition?
Mr. Schiff. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Schiff. I really want to add my voice to that of the
gentleman from Massachusetts. Having been a Federal prosecutor
for 6 years, this strikes me, too, as very unprecedented
treatment of grand jury material. I am going to support the
amendment. These are extraordinary conditions that we are in.
They call for extraordinary steps to protect the country, but I
don't think we should do this lightly or not fully cognizant of
the significant departure that we are making today.
Also, I think we need to be aware of the ongoing
responsibility that we are going to have as a body to continue
to monitor how this affects the grand jury process, how it
affects witnesses' willingness to testify candidly before the
grand jury, how it affects expectations of the confidentiality
of what is said in the grand jury, a whole host of related
issues. So I think our work with this bill is really only
beginning and that we are going to have a very important,
ongoing responsibility.
It is surprising, I think, to many lay people how little
Government is able to share with itself and frequently how it
is prohibited from sharing with itself. It seems in some
respects institutionally we preclude the left hand from knowing
what the right hand is doing.
Chairman Sensenbrenner. Would the gentleman yield?
I would like to inform the gentleman and the Members we are
in the process of doing some comprehensive bipartisan oversight
on the Patriot Act, and the majority and minority staff has
been working assiduously to draft a letter which I am sure the
Attorney General is going to love to receive. So everybody in
the room is, you know, on notice that that letter is coming and
we are going to continue working on that.
Mr. Schiff. I think what has been very encouraging is that
it has been truly bipartisan and sustained and simply can't
stop today. I want to thank my colleague from Massachusetts for
raising this issue.
Mr. Delahunt. I want to congratulate the Chair in terms of
exercising that oversight. I applaud him and think it is vital.
But I think it is important, also, to note that Mr. Schiff made
an excellent point. Responsible defense counsel who have
witnesses subpoenaed before local and State grand juries are
going to--if this act, if this amendment should pass and
something similar becomes law, it is going to take a different
look at whether that particular witness should testify and
under what circumstances should testify.
I mean, there are just implications here that are difficult
to describe. But, clearly, competent defense counsel will be
looking at this particular statute with maybe motives to slow
down or even impair or impede a criminal investigation,
unrelated to terrorist activity.
Mr. Weiner. Just so we understand, Federal law enforcement
officials will have access to the information from the grand
jury. They already will. So the idea that there is going to be
some reluctance to reveal information about future crimes,
well, that probably--that chilling effect probably exists
today. The only question is, if you get information, what you
do with it and with whom do you share it? And I don't think
this is going to be broadly shared. We were very careful to
draw into the bill that it is incumbent on the Attorney General
to write regulations for under what circumstances the
information is going to be shared with local law enforcement.
And we must not forget that another element to this is wire
tap information as well. I mean, I hear your concern, and I
agree with it, and we tried to be sensitive to that issue here,
but we should not think that presently the information doesn't
get in the hands of----
Mr. Schiff. Reclaim the balance of my time.
I do think, though, that we are talking about a market
expansion of the dissemination of this information. Indeed,
that is the purpose of this bill; and I don't think it should
be underestimated. I think there is a certain level of
confidence within the Federal law enforcement world about the
confidentiality of information, which is perfect, but it is a
certain expectation. Once you go beyond that and open it up to
local law enforcement, local agencies that might be involved in
emergency preparedness, then there is a lot less grip on the
information.
So I have, for example, in the past resisted allowing the
induction of attorneys in the grand jury because this changes
the character of those proceedings. I think we have to be very
careful here.
Chairman Sensenbrenner. The time of the gentleman has
expired. For what purpose does is the gentleman from North
Carolina, Mr. Watt, seek recognition?
Mr. Watt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. I won't take 5 minutes, and I don't want to go
back and beat a dead horse that we apparently worked very hard
to--but I think this is points up even more the importance of
the amendment that we just adopted.
Because while there was a regimen for protecting this
information under the Patriot Act in the Federal Government's
bosom, what we are trying to do is set up a regimen for sharing
of information with other law enforcement and Government
agencies; and when you do that, you have got to have some
pretty rigorous rules of the road. And while we didn't write
those rules into this bill or with the amendment that we just
passed, we did write in a requirement that the Attorney General
and the CIA--director of the CIA adopts a set of rules that
will govern the dissemination of this information.
So I just wanted to point that out. It doesn't address
still the concerns that Mr. Delahunt and Mr. Schiff are
raising, concerns which I very much share, but at least it
requires them to be cognizant of it and to set up and adopt
some rules of the road before they go forward.
Chairman Sensenbrenner. The gentleman yield back?
Mr. Watt. Yes, I do.
Chairman Sensenbrenner. For what purpose does the
gentlewoman from Texas, Ms. Jackson Lee, seek recognition?
Ms. Jackson Lee. Strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Jackson Lee. As I review this amendment, I am clear on
its intent. I am not clear on its practicality or its impact.
It is certainly clear that many of us expressed our concerns
over the last couple of weeks on the basic question of
information sharing to which the base bill applies,
particularly as we listen to some of the alleged egregious
inertia and inaction with respect to information that the FBI
received and the CIA and the question of whether or not that
information was exchanged.
I think I add to what I perceive to hear from some of my
colleagues a concern about the piercing of the grand jury
system which is a sacred system which had been set up, in
essence, by the early founders of this Nation in post common
law to protect the sanctity of information gathering to
determine guilt or innocence.
We always discuss with a high degree of sensitivity grand
jury testimony. Individuals go into grand juries without
counsel. It is there that there is a determination of whether
to proceed or not to proceed.
Therefore, I am unready with this particular amendment as
to its narrowness, whether or not it is geared only to
terrorism, whether in fact we will be relying upon the other
body to address the question. And the importance of information
sharing has its place, even as I begin to wonder about the
terminology ``enemy combatant'' and someone detained since May
8th without counsel or being charged.
I do realize we are looking at a new face, but the question
is whether the face can be--to hold someone since May 8th when
I, on the newspaper facts, perceive that there is probable
cause and the individual could have counsel or could be held in
some other circumstances.
This brings to bear the similar type of concerns as to
whether or not we are piercing grand jury testimony even as we
allow the interaction of local government. I see references to
the U.S. Patriot Act, and this may require further study, but I
did not want this amendment to proceed without expressing my
degree of unreadiness.
I guess the overall concern, Mr. Chairman, that I think we
will have to confront in the weeks and months to come as we
move the homeland security department along is that we are
going to do ourselves, this country, a great disservice and
great damage if we are willy-nilly and in fear of not being
steady on our oversight of civil liberties and due process, the
protection of individual rights. I think we can be safe and we
can fight terrorism with those particular parameters in place.
Again, my view of the grand jury testimony is sacred, is
all I can see out of this amendment--and I am sure I will see
more, reading this more clearly--is a piercing of the grand
jury testimony on suggestion that that will help----
Mr. Weiner. Would the gentlewoman yield?
Ms. Jackson Lee.--local law enforcement.
I will be happy to yield.
Mr. Weiner. I want to point out to the Committee, the
PATRIOT Act did this piercing already, inasmuch as it did--if
you consider it to be piercing for the FBI to be able to talk
to CIA about grand jury, we did that in the PATRIOT Act. If you
consider it to be piercing that the INS can talk to the FBI, we
did that in the PATRIOT Act. The only thing we are doing here
with this is we are saying, taking that same sharing
information after we ensure that the information is only
necessary to conduct official duties, the confidentiality steps
are taken. We understand that this doesn't mandate the shaving
of information. We simply remove a barrier to----
Ms. Jackson Lee. Reclaiming my time. I am reclaiming only
because I don't want it to be finished.
Let me make it clear that the final PATRIOT Act I did not
vote for. So I remain unready with respect to the impact,
ultimately. I do believe in information sharing and
intelligence sharing. I am concerned with its expansiveness.
I think Mr. Schiff made a comment--he did say expanding the
marketplace. That is the concern that I have.
Again, I think the merits of this amendment are legitimate.
I question its practicality, and the ultimate impact of it as
relates to the issues that I am concerned about is the sanctity
of the grand jury testimony. I don't know how the PATRIOT Act
is going to ultimately play out in the long range. So I hope we
will be cautious as we pass this, and I hope the other body----
Chairman Sensenbrenner. The gentlelady's time has expired.
The question is on the amendment offered by the gentleman
from New York, Mr. Weiner. Those in favor will say aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the
amendment is agreed to.
Are there further amendments?
If not, the question is on the amendment in the nature of
the substitute as amended. Those in favor will say aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the
amendment is in the nature of a substitute as amended is agreed
to.
The Chair notes the presence of a reporting quorum.
The question is on reporting the bill H.R. 4598 favorably.
Those in favor will say aye. Opposed, no.
The ayes appear to have it. The ayes have it, and the
motion to report favorably is agreed to.
Without objection, the bill will be reported in the form of
a single amendment in the nature of a substitute, reflecting
amendments that were agreed to today.
Without objection, the Chairman is authorized to move to go
I10onference pursuant to House rules. Without objection, the
staff is directed to make any technical and conforming changes,
and all Members will be given 2 days as provided by House rules
in which to submit additional dissenting, supplemental or
minority views.
