Congressional Record: July 8, 2004 (House)
Page H5348-H5383]
DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED
AGENCIES APPROPRIATIONS ACT, 2005
The SPEAKER pro tempore. Pursuant to House Resolution 701 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the State of the Union for the further consideration of the bill,
H.R. 4754.
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In the Committee of the Whole
Accordingly, the House resolved itself into the Committee of the
Whole House on the State of the Union for the further consideration of
the bill (H.R. 4754) making appropriations for the Departments of
Commerce, Justice, and State, the Judiciary, and related agencies for
the fiscal year ending September 30, 2005, and for other purposes, with
Mr. Hastings of Washington in the chair.
The Clerk read the title of the bill.
The CHAIRMAN. When the Committee of the Whole rose on Wednesday, July
7, 2004, the amendment by the gentleman from Virginia (Mr. Wolf) had
been disposed of, and the bill was open for amendment from page 57,
line 18, through page 108, line 22.
Amendment No. 2 Offered by Mr. Sanders
Mr. SANDERS. Mr. Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 2 offered by Mr. Sanders:
At the end of the bill (before the short title), insert the
following new title:
TITLE VIII--ADDITIONAL GENERAL PROVISIONS
Sec. 801. None of the funds made available in this Act may
be used to make an application under section 501 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1861) for an order requiring the production of library
circulation records, library patron lists, library Internet
records, book sales records, or book customer lists.
The CHAIRMAN. Points of order are reserved.
Pursuant to the order of the House of yesterday, the gentleman from
Vermont (Mr. Sanders) and a Member opposed each will control 20
minutes.
The Chair recognizes the gentleman from Vermont (Mr. Sanders).
Mr. SANDERS. Mr. Chairman, I yield myself 5\1/2\ minutes.
Mr. Chairman, I have a bipartisan amendment at the desk which is
cosponsored by the gentleman from Idaho (Mr. Otter), the gentleman from
Michigan (Mr. Conyers), the gentleman from Texas (Mr. Paul) and the
gentleman from New York (Mr. Nadler).
This amendment, which addresses section 215 of the USA Patriot Act,
is supported by citizens across the ideological spectrum, from
conservative to progressive. This amendment is a narrower version of
H.R. 1157, the Freedom to Read Protection Act, a bill I introduced last
year and which now has 145 bipartisan cosponsors.
To date, 181 national and regional library, publishing, civil liberty
and privacy groups have endorsed this legislation, including the
American Library Association, the American Book Sellers Association and
the NIA. In fact, book sellers are way on their way to securing 1
million signatures on a petition drive on this issue.
Mr. Chairman, as the Members of this House are well aware, in October
2001, Congress hastily passed the USA Patriot Act. This Patriot Act
significantly broadened the government's investigational powers.
Unfortunately, given the speed with which the Congress passed the
Patriot Act, it should come as little surprise that this new law has
created consequences that many Members did not intend.
Every Member of this body was appalled by the terrorist attack of 9/
11, and I know that we all are going to work together to do everything
we can
[[Page H5349]]
to protect the American people from future attacks, but I am sure that
I speak for the vast majority of the Members of this body when I say
that while we fight terrorism vigorously, we must do it in a way that
does not undermine the basic constitutional rights of the American
people, what makes us a free country.
{time} 1230
That is what this amendment is all about.
Mr. Chairman, this concern about protecting constitutional rights
while we fight terrorism is not an ideological issue. Again, on this
point I agree with people who I often disagree with. Let me quote
Republican majority leader, former leader Dick Armey, when he said,
``Are we going to save ourselves from international terrorism in order
to deny the fundamental liberties we protect to ourselves?''
I agree with Dick Armey. I agree with Newt Gingrich, who also voiced
concerns about the USA PATRIOT Act. But also what we have are four
State legislatures, including my own State of Vermont, 332
municipalities all across the country, conservative, progressive, going
on record in passing resolutions expressing their concerns about this
or that aspect of the PATRIOT Act.
Now, one of the areas of the PATRIOT Act that has received the most
attention is section 215 as it relates to the government's ability to
gain access to the files of America's libraries and bookstores. Mr.
Chairman, under 215, government agents can go into a secret FISA court
and get an order requiring that a library or bookstore turn over
records that would tell them what innocent Americans are reading. They
do this by informing the judge that they are doing an investigation on
international terrorism, and having said that, a judge in the FISA
court is obliged to give them a warrant to go into a library or into a
bookstore so that they can determine the books that innocent Americans
are reading. They do not need to have probable cause or specific
information on an individual who is alleged to be a terrorist.
Mr. Chairman, just so the Members of this House understand how broad
this authority is, let me quote from an October 29, 2003, declassified
memo from the FBI's general counsel to all field offices. The memo
expressly states that a request under section 215 ``is not limited to
the records of the target of a full investigation. The request must
simply be sought for a full investigation. Thus, if the records
relating to one person are relevant to the full investigation of
another person, those records can be obtained, despite the fact that
there is no open investigation of the person to whom the subject of the
records pertain.''
To make matters even worse, Mr. Chairman, all the proceedings are
secret, so the innocent persons whose records are sought will not even
know that his or her records have been seized.
Mr. Chairman, there are opponents of this amendment who are
suggesting that if we pass this, the FBI and law enforcement officials
will be unable to go into libraries and bookstores to track terrorists
and that exempting libraries would ``create a terrorist safety zone.''
This is absolutely not the case, not the case. This amendment does not
except libraries and book sellers from searches.
The FBI will still have many legal tools at its disposal as it always
has, including search warrants and criminal grand jury subpoenas to
attain library and bookstore records.
Mr. Chairman, we have an opportunity today to show the American
people, yes, we are going to fight terrorism vigorously; but we are
going to do it while we protect the constitutional rights of our
people. Conservatives, progressive, moderates agree, let us pass this
amendment.
Mr. WOLF. Mr. Chairman, I rise in opposition to the amendment and
yield myself such time as I may consume.
Mr. Chairman, I rise in opposition to the gentleman's amendment. The
gentleman's amendment is an attempt to roll back part of the PATRIOT
Act, which should not be done on an appropriations bill with 20 minutes
on each side. This is a matter that the Committee on the Judiciary, the
gentleman from Wisconsin (Mr. Sensenbrenner) and the gentleman from
Michigan (Mr. Conyers), ought to be holding hearings on and have an
opportunity to take a look at it. The business records provision the
gentleman wishes to amend sunsets at the end of 2005.
I think it is a great opportunity that the Congress has oversight on
this issue, and I know that the gentleman from Wisconsin (Mr.
Sensenbrenner) and the gentleman from Michigan (Mr. Conyers) will be
doing that aggressively, whereby the gentleman from Vermont (Mr.
Sanders) and others from both sides can come and testify; but the
Committee on the Judiciary must be given an opportunity to review this
policy, determine whether the gentleman's amendment is a good idea,
whether it would create a potential safe haven for terrorists at
libraries and address any of these issues particularly; and that is why
the Congress legitimately wanted it to sunset.
Finally, and I would tell the gentlemen on both sides, OMB's
Statement of Administration Policy states if any amendment that would
weaken the USA PATRIOT Act were adopted and presented to the President
for his signature, the bill would be vetoed.
I urge a ``no'' vote, and let the gentleman from Michigan (Mr.
Conyers) and let the gentleman from Wisconsin (Mr. Sensenbrenner)
really take a lot of time to bring the best constitutional authority
together and look at this. That is the right way to go.
Mr. Chairman, I yield 2 minutes to the gentleman from Idaho (Mr.
Otter), who has done a great job on this issue.
Mr. OTTER. Mr. Chairman, I thank the gentleman from Vermont for his
leadership and for once again bringing this amendment before us.
Last year I believe if we had this amendment before us when we had
the Otter amendment and several others relative to the PATRIOT Act, we
would have had and should have had at least 309 votes for this
amendment as we did the Otter amendment.
I would just like to speak to a couple of things. I know my office
and several other offices have received calls regarding a veto threat
on this amendment. This is the ninth such amendment that we have
received a veto threat on.
Well, I would tell you that if there is that much consideration, if
there is that much concern on this bill as a whole, then maybe we ought
to take the bill back to committee and reconsider the bill itself
rather than just the amendment.
There is no greater threat to this Nation in terms of terrorism than
the drugs that are on our streets today. There is no greater threat and
no greater form of terrorism against our children than the
pornographers in this country, and there has been no greater threat in
the past on a civil and law-abiding society than organized crime.
Yet, rather than add ``domestic terrorism'' to this list, we have
taken domestic terrorism and elevated it above those three elements
with special laws. We continue to say we are doing the same thing with
domestic terrorism as we have done with pornography, as we have done
with drugs and as we have done with organized crime.
Not so. Not so, Mr. Chairman, because what we have done with domestic
terrorism is we have removed judicial oversight and that most important
role that the judiciary plays--shining that bright constitutional light
into the dark shadows of probable cause.
And so I would like to join the gentleman from Vermont. I would like
to join others who are prepared to say we think that these other acts
of terrorism against our children and against our civil society as a
whole are no less important to fight against than domestic terrorism,
and, in fact, have probably taken, no, have taken, Mr. Chairman, many
more lives than were lost on 9/11.
Mr. WOLF. Mr. Chairman, I yield myself such time as I may consume
before I recognize the gentleman from North Carolina (Mr. Coble), to
respond.
We just received a letter from the Justice Department, and I wanted
to read it for the Members.
It said, ``In anticipation of the U.S. House of Representatives'
consideration of an amendment that would prevent the Justice Department
from obtaining records from public libraries and book stores under
section 215 of the USA PATRIOT Act, your staff has recently inquired
about whether terrorists have ever utilized public library facilities
to communicate with others about committing acts of terrorism. The
short answer is `yes.' ''
[[Page H5350]]
The letter continued: ``You should know that we have confirmed that,
as recently as this past winter and spring, a member of a terrorist
group closely affiliated with al Qaeda used Internet services provided
by a public library. This terrorist used the library's computer to
communicate with his confederates. Beyond this we are unable to
comment.''
This letter is to the gentleman from Wisconsin (Mr. Sensenbrenner),
Mr. Chairman; and I am providing it herewith for the Record.
Department of Justice,
Office of Legislative Affairs,
Washington, DC, July 8, 2004.
Hon. F. James Sensenbrenner, Jr.,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Chairman Sensenbrenner: In anticipation of the U.S.
House of Representatives' consideration of an amendment that
would prevent the Justice Department from obtaining records
from public libraries and bookstores under section 215 of the
USA PATRIOT Act, your staff has recently inquired about
whether terrorists have ever utilized public library
facilities to communicate with others about committing acts
of terrorism. The short answer is ``Yes.''
You should know we have confirmed that, as recently as this
past winter and spring, a member of a terrorist group closely
affiliated with al Qaeda used internet services provided by a
public library. This terrorist used the library's computer to
communicate with his confederates. Beyond this, we are unable
to comment.
We hope this information is useful to you and your
colleagues as you consider amendments relating to the USA
Patriot Act.
Sincerely,
William E. Moschella,
Assistant Attorney General.
Mr. WOLF. Mr. Chairman, I yield 2 minutes to the gentleman from North
Carolina (Mr. Coble).
Mr. COBLE. Mr. Chairman, I thank the gentleman from Virginia for
yielding me this time.
Mr. Chairman, reasonable men and women can disagree, and hopefully
disagree agreeably, and this is a situation where this is going to
happen. I think convincing arguments can be made on each side of the
issue. And I do not want to sound like I am knee-jerking responding to
this, but should terrorists be able to use taxpayer-funded public
library facilities to plot a major attack without fear they will be
investigated by the FBI?
I think that could come to play if this amendment is, in fact,
enacted. As I understand my friend from Vermont, the amendment would
exempt public libraries and book stores from section 215 of the USA
PATRIOT Act, which permits the FBI, after obtaining a Federal court
order, and I repeat, after obtaining a Federal court order, to obtain
documents and other records relevant to international terrorism and
espionage cases.
Now, there has been no abuse in this matter, Mr. Chairman. On
September 18 of last year, the number of times to date that the Justice
Department had utilized section 215 of the USA PATRIOT Act relating to
the production of business records was declassified, and at that time
it was made known that the number of times section 215 had been used as
of that date was zero. So, obviously, there is no abuse here.
Furthermore, section 215, Mr. Chairman, provides for a thorough
congressional oversight. Every 6 months the Attorney General is
required to inform the Congress on the number of times agents have
sought a court order under section 215, as well as the number of times
its requests were granted, modified, or denied. No abuse at all on
this. And I just believe we should vote down the amendment.
Mr. SANDERS. Mr. Chairman, I yield myself 15 seconds before I yield
to the gentleman from New York (Mr. Nadler) to tell my friends that it
is not accurate that under this amendment that the FBI cannot go into
libraries and book stores. They sure can. They can get subpoenas. They
can go to the grand jury. They can do it in the conventional way. We
have no objection to that. But they cannot have a carte blanche, no
probable cause to check on the reading records of the American people.
Mr. Chairman, I yield 2 minutes to the gentleman from New York (Mr.
Nadler).
Mr. NADLER. Mr. Chairman, we have to be very careful that because of
this war on the Islamic terrorists we do not destroy our own civil
liberties. The PATRIOT Act was passed in great haste, and parts of it
do exactly that.
The gentleman from Virginia says this amendment should not be
considered without hearings by the Committee on the Judiciary and given
proper consideration, but the fact is there were no hearings before we
passed the PATRIOT Act. The PATRIOT Act was warm to the touch. No one
read it before it passed this House. No one knew what was in it. The
bill that came out of committee was not the bill considered by the
House. So that is where the original flaw lies.
We should now pass this amendment not to make libraries an exempt
zone. As the sponsor, the gentleman from Vermont (Mr. Sanders), said,
police will still be able to obtain records, so long as they can
justify their actions based on probable cause. What is the difference
if this amendment passes? The difference is between good police work
and a fishing expedition.
Do we want the government rummaging through the records of average
Americans without reason, or do we want to insist at the very least
that searches be based on probable cause? That is the issue. That is
the issue: probable cause.
The Supreme Court of the United States, the Rehnquist court, gave a
rap in the teeth to the administration last week for claiming powers
that no executive in an English-speaking society has claimed since
before Magna Carta. We do not want tyranny. We do not want tyranny.
This amendment is designed to say you can read without being afraid
the government will someday reveal what you are reading. We do not want
the chilling effect on free speech. If there is a real reason, if the
government suspects someone is looking up how to make atom bombs, go to
a court and get a search warrant, show probable cause. That is the way
it worked for 200 years. It worked against the Nazis in World War II,
it worked in the Civil War, and it will work today. We need not
surrender fundamental liberty, and we should not.
That is what this amendment is about, and that is why we should urge
its adoption.
Mr. WOLF. Mr. Chairman, I yield 3 minutes to the gentleman from
Connecticut (Mr. Shays).
Mr. SHAYS. Mr. Chairman, I thank the gentleman for yielding me this
time.
I have 70 constituents who lost their rights on September 11; and to
hear this debate, I am not sure we seem to care about that. Something
told me on September 11 that we had received a wake-up call from hell,
and that wake-up call from hell indicated we have to detect and
prevent, because the old Cold War philosophy of contain and react and
mutually assured destruction went out the window.
{time} 1245
On an appropriations bill, we are trying to amend the PATRIOT Act
because some librarians find it offensive that we may want to go in and
find out who a terrorist talks with when they use a computer, and we
are going to have another amendment that basically says we need to tell
them first that we think they are a terrorist.
If we are going to detect and prevent, we have to break into these
cells, and the only alternative left if we see this amendment pass is
that we would then have to go before a grand jury and state our case,
without probable cause, I might add, but state our case when we are
talking about significant national security issues. We may be talking
about a chemical weapon, a nuclear weapon. We may be talking about a
biological agent. We may be talking about breaking into a cell to
prevent that, and yet we are going to be told now we need to go before
a grand jury to do the same things we can do in ordinary criminal
cases.
I am amazed beyond comprehension at the lack of recognition that it
is not a question of if; it is a question of when, where, and what
magnitude we are going to have to face these kinds of attacks.
And I know what is going to happen when these attacks happen. There
will be Members coming back to the floor saying how come the CIA did
not know? How come our intelligence community did not know? Why did
they fail us again? And we are going to tie their hands behind their
backs anyway and say we have to let a terrorist know first before we
break into a terrorist cell.
[[Page H5351]]
The gentleman from Vermont (Mr. Sanders) can throw his hands any way
he wants, but the bottom line is we are at war with terrorists and we
want to break into those cells and detect what is going on; and we sure
as hell do not want to tell them we're coming.
Mr. SERRANO. Mr. Chairman, I move to strike the last word.
Let me first say I am troubled by the comments of the gentleman from
Connecticut (Mr. Shays). To tell a New Yorker, to have a New Yorker
hear that we somehow do not care for the victims of September 11 is
really the cheapest kind of blow a Member can put on this House floor.
I care and everybody else cares.
But in the process of caring for the victims of September 11, no one
said we were supposed to throw away the Constitution of this country.
If in fact we were attacked, as some people would propose, because we
are different, if in fact we were attacked because we are a great
democracy, if in fact as some people propose we were attacked because
people hate our freedom and hate our way of life, then the one thing we
have to make sure in defending ourselves and getting the bad guys is we
do not harm the good guys and throw away the Constitution. That would
be the biggest victory for the terrorists.
I know that the gentleman from Connecticut (Mr. Shays) is not
listening to us now, but I personally take great offense to the fact;
and I am glad that the gentleman from Connecticut is now listening
because I think that was a low blow. I knew people that died there. I
was friends with people who died there. We all are. Everybody in this
country became a New Yorker that day. That is a fact of life. From
Oklahoma to Portland, Oregon to Miami, Florida, everybody became an
American and a New Yorker that day; so do not mix one with the other.
The fact of life is that we are talking here about a very difficult
situation. The FBI still has the right under the gentleman's amendment
to look at what terrorists are reading and at what terrorists are
doing. We want them to do that. We want them to do that. That is why we
support the FBI's efforts. But what somebody else is reading which has
nothing to do with terrorists, with an opportunity now to invade our
privacy like we have never seen before in this country, that is not
what this argument is about, and it should not be mixed that way. I
think it is offensive to some of us who believe we can defend our
country and protect our Constitution to be reminded every day that if
we question this policy and if we question the PATRIOT Act, we are
somehow un-American and not patriotic enough. No one should ever
question us. I never question anybody's patriotism or their love for
this country.
Now there is traveling around the possible threat of a veto. If our
President wants to veto this bill that funds the FBI's effort against
terrorism, that funds the embassy security for our men and women who
work overseas, that funds our war on drugs, that continues like in the
homeland security bill, our fight on terrorism and the protection of
our liberty and our system, let him veto it. Let the President explain
to the American people that he vetoed it because the gentleman from
Vermont (Mr. Sanders) wanted to make one small change.
My friends, the PATRIOT Act, and I must commend the leaders of this
House, they are good at taking a bill that does just the opposite and
calling it something that it is not. The PATRIOT Act is everything but
the PATRIOT Act. It is probably the act that takes away a lot of our
abilities to continue to be patriots, but that is another issue.
This bill is what it is. The gentleman from Vermont (Mr. Sanders) is
just trying to make it better. But I think my most important point here
today is we should be careful what we say and how we say it because
this is not the time to divide the country; this is the time to simply
unite it.
Let me conclude my comments by reminding us of what one of our
Founding Fathers, Benjamin Franklin, said: ``They that give up
essential liberty to obtain a little temporary safety deserve neither
liberty nor safety.'' That is our problem at the present moment.
Mr. WOLF. Mr. Chairman, I yield myself such time as I may consume.
I think one of the major issues, though, is this is something that
should not be handled on the floor of the House in the heat of the
moment with 20 minutes on each side. It is a serious issue.
Secondly, I was one of the Members who supported the 9/11 Commission.
Thirty people from my congressional district died in the attack on the
Pentagon. I think instinctively, no matter which side Members are on,
they would want to wait until the 9/11 Commission. I know some have
been critical of the
9/11 Commission. I have not. I have been supportive of it. We would
want to see what the 9/11 Commission said; did they think this was a
problem. I am sure that they are looking at it. We have been in contact
with the 9/11 Commission on the reorganization of the FBI, so there are
two issues.
We would want to wait to hear them, and we would also want to bring
in the librarians, constitutional scholars, the Federal Bureau of
Investigation, and others to come and review with thoughtful
consideration, rather than a heated debate with 20 minutes on each
side.
Mr. Chairman, I yield 4 minutes to the gentleman from Florida (Mr.
Goss), chairman of the Permanent Select Committee on Intelligence.
Mr. GOSS. Mr. Chairman, I rise today in opposition to this amendment.
The PATRIOT Act is not designed to be a Draconian assault on our
rights, despite the description some have given it. Rather, it is a
necessary fool which allows for effective communication between law
enforcement and intelligence agencies. Let me say that again: it is an
effective communication tool between law enforcement and intelligence
agencies.
Those of us who have studied what went wrong on 9/11 came up with a
very dramatic conclusion which was published in a joint report put out
by the House and Senate which said the problem was communication, there
was a wall that needed to be taken down; and in fact the PATRIOT Act
helped accomplish this, and it was a useful legislative contribution by
the United States Congress as the legislative body to help fight the
war on terrorism.
We have agencies that set forth every day in our country with the
goal of keeping America safe. That is no small proposition these days.
We have all read on the front page of the New York Times, the very New
York Times the gentleman is referring to, that city we are all
concerned about, the concerns about domestic attack, about right-now
worries that there are things that should give us concern about our
safety from terrorists, that their attention may very well be focused
there. That has been reported on the front page of the New York Times.
The PATRIOT Act makes the task of dealing with these people and these
threats a lot easier, and I continue to support the PATRIOT Act, and
those who are working behind the scenes with our national security
organizations do too.
We all know that no piece of legislation this body or any body
produces is going to be perfect. We all know about unintended
consequences. And so Congress has done something else. We have provided
for oversight capability in case we got something wrong, and we have
the capacity to investigate and correct any instances of misuse of the
PATRIOT Act, just as we would in other cases where wrongdoing is
alleged.
The Permanent Select Committee on Intelligence, which I am the
chairman of, regularly conducts oversight, and it has proven to be
effective and reliable. To that end I have frequently described the
Intelligence Committee when I make public speeches, which I do
frequently, as the metaphorical 1-800 number for anybody who has
concerns about abuses under the PATRIOT Act or any intelligence-related
activities. The number to the House Permanent Select Committee on
Intelligence has been and continues to be publicly listed and available
to anybody who wants to call from around the world. If you have
experienced a specific problem with the PATRIOT Act, you can now call
us at our toll-free number. It only costs the taxpayers. The number is
1-877-858-9040. We will be happy to receive comments and exercise our
congressional right to oversight as appropriate.
If there are problems with the PATRIOT Act, fine. Let us fix them in
the kind of way that the chairman has properly suggested. I think the
gentleman from Virginia (Mr. Wolf) has
[[Page H5352]]
exactly described the right process that we should have questioning all
the time whether we are getting it right, particularly in areas of our
own rights; and I think debate is well warranted.
But this amendment and the half-truths which have been perpetuated
against the PATRIOT Act are not the answer.
In closing, Members might be interested to know that we have not had
any specific abuse complaints brought to our attention. Let me say that
again: we have not had any specific abuse complaints brought to our
attention. And on the contrary, we have had significant testimony that
has shown utility of the PATRIOT Act. It is not unfair to say that the
PATRIOT Act has been and is a vital weapon in the war on terrorism. I
would say, in my judgment, that lives have been saved, terrorists have
been disrupted, and our country is safer. I fully endorse the idea of
oversight by Congress, I fully endorse a reporting system for any
abuses, and I am happy to report I know of none, and I think I am in a
position to report fairly on that. I urge opposition to the amendment.
Mr. SANDERS. Mr. Chairman, I yield for the purpose of making a
unanimous consent request to the gentleman from California (Mr. George
Miller).
(Mr. George Miller of California asked and was given permission to
revise and extend his remarks.)
Mr. GEORGE MILLER of California. Mr. Chairman, I rise in strong
support of the Sanders amendment. Let me say that the problem of 9/11
was not with what Americans were reading in the libraries. It is what
the intelligence community and the FBI were not reading from its
regional offices.
Mr. SANDERS. Mr. Chairman, I yield 1\1/2\ minutes to the gentleman
from Texas (Mr. Paul).
(Mr. PAUL asked and was given permission to revise and extend his
remarks.)
Mr. PAUL. Mr. Chairman, I think it would be proper to rename this
amendment and call it the ``partial restoration of the fourth
amendment,'' and that is our attempt here. We are doing exactly what
the gentleman early on suggested: this is oversight; this is our
responsibility. This is the proper place to have the debate. It was the
Congress that created the PATRIOT Act; it is the responsibility of the
Congress to do something about it if it was a mistake. And it, indeed,
was a mistake.
I would like to think that the American people are with us entirely,
and I know a large number already are with us on trying to straighten
up some of the mess caused by the Patriot Act, but I would like to say
that there is one basic principle that we should approach this with,
something I approach all legislation with, and that is the principle of
a free society is that we never have to sacrifice liberty in order to
preserve it.
The whole notion that the purpose of providing freedom and liberty to
this country is that we have to give up some, I do not believe is
necessary. It is never necessary to give up freedom to preserve
freedom. I do think we made some serious mistakes. We made a mistake in
passing the PATRIOT Act under conditions of an emergency and under the
conditions of post-9/11. We did not do a very good job at Tora Bora. We
failed to find the individuals responsible for 9/11 and we have not
concentrated on the people who committed this crime. Instead, we have
decided to invade and occupy a foreign country rather than protecting
and providing security here, at home providing freedom for our people
and more security for this country.
Mr. WOLF. Mr. Chairman, I yield 3 minutes to the gentleman from Texas
(Mr. Smith).
Mr. SMITH of Texas. Mr. Chairman, I thank the gentleman from Virginia
(Chairman Wolf) for yielding me this time.
Mr. Chairman, I oppose the Sanders amendment which would make
libraries and bookstores a sanctuary for terrorists. There are many
misconceptions about the PATRIOT Act, but section 215 has received an
unfair amount of criticism. Section 215 covers access to business
records. Library records, among other types of business records, have
always been accessible under this provision.
{time} 1300
These records have been subject to subpoenas by grand juries for more
than 30 years. For example, in 1997 a murder case in Florida allowed a
grand jury to subpoena the records from the public libraries in Miami.
Section 215 actually provides more protections than the subpoena
powers of grand juries. First, this provision does not apply to
ordinary citizens engaging in ordinary criminal activity. In order to
conduct a search of records, the FBI must have a court order.
Second, there are narrow restrictions on when such a record search
may take place. It can only be used to obtain foreign intelligence
information concerning a noncitizen of the United States or to obtain
information relating to international terrorism or clandestine
intelligence activities.
Again, this type of record search is not available in ordinary crimes
or even for domestic terrorism. Library records can provide a
legitimate source of information on individuals planning terrorist
attacks against us. If we exempt library and book store records from
foreign intelligence investigations, then terrorists will know exactly
how to hide what they are doing. If this amendment passes, terrorists
will know that if they use computers at taxpayer-funded public
libraries, the FBI would be powerless to get records of their terrorist
activities. When drug dealers or crime syndicates use these computers,
these very same computers, these records have always been available to
grand juries. Why not the terrorist records as well?
Mr. Chairman, finally, I would like to add that this is an issue that
should be considered by the Committee on the Judiciary, not as an
amendment to an appropriations bill.
Mr. SANDERS. Mr. Chairman, I yield 1\1/2\ minutes to the gentleman
from Michigan (Mr. Conyers), ranking member of the Committee on the
Judiciary, a hero of many.
Mr. CONYERS. Mr. Chairman, my congratulations to the gentleman from
Vermont for bringing this forward.
Mr. Chairman, there are two ways that we can get the information from
libraries, book stores, video stores, and that is through a regular
criminal warrant and through a grand jury subpoena, all of which is
frequently used. But doing it this way violates the fourth amendment,
unreasonable searches and seizures; the fourteenth amendment, due
process; the first amendment, freedom of speech; and the fifth
amendment, due process.
For those who think they can call the Department of Justice's hotline
and get the information, this information is classified. They will not
reveal to the Committee on the Judiciary whether they have used it and
how much they have used it. We know that they have through an American
Civil Liberties Union lawsuit, which in the course of the suit it came
out that they use it, but they will not give this information.
For those who want to suggest that the oversight by Congress will
take care of the Sanders amendment, let me tell them the entire PATRIOT
bill was substituted the night before it was unanimously reported from
the House Committee on the Judiciary by the Department of Justice up in
the Committee on Rules. So much for oversight by Congress. Support the
Sanders amendment.
Mr. WOLF. Mr. Chairman, I reserve the balance of my time.
Mr. SANDERS. Mr. Chairman, I yield 1 minute to the gentlewoman from
New York (Mrs. Maloney).
Mrs. MALONEY. Mr. Chairman, I rise in strong support of the freedom
to read amendment. It is imperative that we do all we can to protect
our country against terrorism, but reinstating laws that allow the FBI
to conduct searches on libraries with search warrants and criminal
subpoenas would not jeopardize national security. It would merely
protect our constitutional right to privacy and make our Nation's
libraries free once again.
But under the PATRIOT Act, the use of our local library is no longer
free. It can cost us our civil liberties. And in the U.S. that makes it
very expensive.
We are talking about the basic right to inform oneself without the
threat of the Federal Government looking over their shoulder for
whatever reason it likes or analyzing their intellectual curiosity for
whatever reason they want. This is a chilling thought in a country that
calls itself the land of the free.
The first amendment protects our right to express ourselves. We
should
[[Page H5353]]
not need a constitutional amendment that protects our right to inform
ourselves, but section 215 of the PATRIOT Act makes us think it should
be removed. I support this amendment.
Mr. Chairman, I rise in strong support of the Freedom to Read
amendment.
This amendment would abolish section 215 of the PATRIOT Act. Section
215 gives the FBI unlimited power to examine our library records and
book-store purchases--without providing any evidence that one is under
suspicion of terrorism.
The free library is one of America's great educational and cultural
traditions, and a cornerstone of our communities. But under the PATRIOT
Act, use of the local library is no longer free. It can cost you your
civil liberties, and in the United States of America, that makes it
very expensive.
We aren't talking about flag burning here. We're talking about the
basic right to inform yourself without the threat of the Federal
Government looking over your shoulder for whatever reason it likes.
When you are doing research in a library or browsing the bookshelves
at Barnes and Noble, you shouldn't have to think twice about how your
intellectual curiosity might be analyzed in a Federal investigation.
This is a chilling thought in a country that calls itself the Land of
the Free.
The first amendment protects our right to express ourselves. We
shouldn't need a constitutional amendment that protects our right to
inform ourselves. But section 215 of the PATRIOT Act makes you wonder.
It's imperative that we do all we can to protect our country against
terrorism.
Reinstating laws that allow the FBI to conduct searches on library
and bookstore records with search warrants and criminal subpoenas would
not jeopardize national security. It would merely protect our
constitutional right to privacy and make our Nation's libraries free
again.
Support the Freedom to Read amendment.
Mr. WOLF. Mr. Chairman, I yield 2 minutes to the gentleman from
Indiana (Mr. Burton).
Mr. BURTON of Indiana. Mr. Chairman, I thank the gentleman for
yielding me this time. I have high regard for the gentleman from
Vermont, my good friend, and the gentleman from Idaho (Mr. Otter), and
I regret that I have to oppose their amendment. But I want to tell the
Members why.
Obviously the PATRIOT Act does suspend some constitutional liberties.
I am one of those people who loves the Constitution and believes we
should not tamper with it. The problem that we have is that on 9/11 we
had over 3,000 of our fellow Americans killed by terrorists because we
did not know in advance what was going to happen. This is not the kind
of situation where we can wait and say, okay, we suspect something is
going on, we go get a court order from a judge and say, we think this
guy is going to do something, and we go get him because in the interim
he may have killed 4-, 5-, or 10,000 people. We have to nail that son
of a gun before the act takes place.
So although some of our liberties have been temporarily suspended,
the FBI told us yesterday, and many of us were at that meeting, that
the PATRIOT Act has been very beneficial in stopping further terrorist
attacks here in the United States of America.
The PATRIOT Act expires in the year 2005, next year; so we will have
a chance to review it again. It has to be renewed because it has a
sunset provision because we are all concerned about the Constitution.
But we are in a war against terrorism right now. We cannot wait for a
terrorist attack to take place and then say, oh, my gosh, why did we
not do something about it? We have to use every tool that is available
to us to prevent that attack from taking place in the first place,
because once it happens, then God help us all.
So the FBI and the CIA and all of our intelligence people tell us
right now the PATRIOT Act is a very valuable tool in preventing further
terrorist attacks on America. We should not be tinkering with it right
now. Next year we can review it, but right now in a war against
terrorism, we were told yesterday that we may be in attacks this
summer, and we have to do everything we can to prevent it. And that
means do not mess with this thing right now, even though I love my good
friend from Vermont.
Mr. SANDERS. Mr. Chairman, I yield 1 minute to the gentlewoman from
California (Ms. Lee).
Ms. LEE. Mr. Chairman, let me just rise today in strong support of
this amendment and thank the sponsors, especially the gentleman from
Vermont for his leadership on this issue. Last year the gentleman from
Vermont (Mr. Sanders) came to my district where hundreds came to
express opposition to this provision of the very onerous legislation
that we are talking about before us today. Under section 215 of the
PATRIOT Act, the FBI has the power to search for any tangible things,
including books, records, papers, documents, and other items, in any
location after showing minimal justification. This punishes all
Americans and really has nothing to do with tracking down terrorists.
This amendment would allow the FBI to follow the procedures already
in current law to obtain warrants to retrieve records for terrorist-
related or criminal investigations. But come on. Families should not be
afraid to check out children's books for fear that they may be
investigated for collaborating with terrorists.
This amendment would restore and protect the privacy which is
afforded to us by our first amendment, the rights of library and book
store patrons which were in place before the USA PATRIOT Act. Those
that did not know this was written in in the dark of the night, this
was written in, we now know. Today we have a chance to get back the
rights guaranteed by our Founding Fathers.
Mr. WOLF. Mr. Chairman, I yield 2 minutes to the gentleman from
Indiana (Mr. Hostettler).
(Mr. HOSTETTLER asked and was given permission to revise and extend
his remarks.)
Mr. HOSTETTLER. Mr. Chairman, eliminating these authorities, as this
amendment would do, would mean that we can get library records for run-
of-the-mill criminal investigations with a grand jury subpoena that
does not require a court order or judicial review, and it would also
mean that we would be eliminating or restricting section 215 of the
PATRIOT Act, and that would preclude the government from getting the
identical library records as the run-of-the-mill investigation I
mentioned earlier to protect national security interests of the United
States. This is at best inconsistent with regard to law enforcement.
Congress recognized this inconsistency and corrected it in the U.S.
PATRIOT Act. For example, today by grand jury subpoena the government
can obtain similar records, library or other business records, related
to the crime of cattle rustling under Title 18 U.S.C. section 2316. But
under this amendment we could not get identical records using a court
order for terrorism-related information.
Section 215 of the PATRIOT Act only applies to the foreign
intelligence investigations and allows only for the collection of
records for an investigation to protect against international terrorism
or clandestine intelligence activities. This authority requires
judicial review, whereas a grand jury subpoena for cattle rustling on
the criminal side does not.
By exempting library records from the business records authority
under section 215 of the PATRIOT Act, this amendment creates a safe
haven for terrorists to communicate and do research on the next attack
that is not created for cattle rustlers.
Mr. SANDERS. Mr. Chairman, I yield 45 seconds to the gentlewoman from
California (Ms. Woolsey).
Ms. WOOLSEY. Mr. Chairman, I believe in the freedom to read, and
Americans' right to read and purchase books without fear of government
monitoring has been wiped out, it has been erased, it has been undone
by the passage of the PATRIOT Act. Congress must repeal this
unconstitutional provision, and we must do it today with this
amendment.
The PATRIOT Act forces library users to self-censor their reading
choices out of fear. Mr. Chairman, censorship is not what America is
about. The existing law would make one believe that by reading a book,
the 9/11 terrorists came into existence. The existing law would lead
one to believe that books are the enemy. Let us not forget the book
burnings in Germany. Books are only the enemy if we do not want our
population to be educated.
Mr. SANDERS. Mr. Chairman, I yield 45 seconds to the gentlewoman from
Texas (Ms. Jackson-Lee).
Ms. JACKSON-LEE of Texas. Mr. Chairman, just a short time away from
[[Page H5354]]
the memorializing of the loss of over 3,000 of our brothers and sisters
during 9/11, we stand on the floor to acknowledge our commitment in the
war against terror and for homeland security. But not one single
terrorist that perpetrated that heinous act was found in the libraries
of America on 9/11. And so I rise to support this amendment on the
simple premise that it reinstates legal standards for investigations of
libraries and book stores which are part of the constitutional
protection of the first amendment, and protectionss that were
eliminated under the U.S. PATRIOT Act.
I simply ask my colleagues to recognize that the war on terror does
not require us to drop our constitutional rights at the door of this
body or the courthouse. Let us stand for the balance between democracy
and security and support this amendment and defeat the unconstitutional
intrusion on our rights!
{time} 1315
Mr. SANDERS. Mr. Chairman, I yield 45 seconds to the gentleman from
New York (Mr. Engel).
Mr. ENGEL. Mr. Chairman, I rise in strong support of the Sanders
amendment. I voted for the PATRIOT Act, I voted for all the
appropriations for the war against terror, I voted for all the
intelligence appropriations, and will continue to do so. But I think we
have to be careful. We have to carefully balance the war against terror
with our personal freedoms.
With the passage of the PATRIOT Act, the FBI gained the unprecedented
power to search libraries and book-buying records without probable
cause of any crime or intent to commit a crime. Furthermore, librarians
and others who are required to turn over records are barred from
informing anyone that the search has occurred or that records were
given to the government. This means that average Americans could have
their privacy violated wholesale without justification or proper
judicial oversight.
This amendment will not limit the ability of the FBI and the
Department of Justice to fight terrorism. This amendment will ensure
that library or bookstore records relating to an American who is not
the subject of an investigation will not wind up in the government's
hands without the benefit or protection of the courts.
Mr. SANDERS. Mr. Chairman, I yield 45 seconds to the gentleman from
Ohio (Mr. Kucinich).
Mr. KUCINICH. Mr. Chairman, 9/11 was a great tragedy. An even greater
tragedy is the destruction of our Bill of Rights.
The PATRIOT Act gives the government the right to search library
reading lists. Our government should not care what people are reading;
it should care that our people can read. Fear passed the PATRIOT Act,
and fear will destroy our democracy.
When Francis Scott Key wrote that ``Star Spangled Banner,'' he raised
a question: Does that star spangled banner yet wave, over the land of
the free and the home of the brave? He made the connection between
freedom and bravery, between courage and democracy.
This is a time for America to have courage. Courage, America.
Freedom, America. Liberty, America. Support the Sanders amendment.
Mr. SANDERS. Mr. Chairman, I yield 45 seconds to the gentleman from
New Mexico (Mr. Udall).
(Mr. UDALL of New Mexico asked and was given permission to revise and
extend his remarks.)
Mr. UDALL of New Mexico. Mr. Chairman, I rise today in strong support
of the Sanders-Otter amendment, which would help restore the privacy
and first amendment rights of library and bookstore patrons.
On the day the PATRIOT Act passed in this body, few Americans were
aware of its harmful impact. Today, I can tell you Americans and my
constituents are appalled at the emasculation of our Constitution.
Section 215 granted authorities unprecedented powers to search or
order a search of library and bookstore records without probable cause
or the need for search warrants. This is absolutely unprecedented.
Those rights to a search warrant, to probable cause, are in the United
States Constitution. They were swept aside in the PATRIOT Act.
We should make the commonsense changes that this amendment makes. I
urge support of the Sanders-Otter amendment.
Mr. WOLF. Mr. Chairman, I yield 1 minute to the gentleman from
Connecticut (Mr. Shays).
Mr. SHAYS. Mr. Chairman, with all due respect, I think we are
swallowing camels and straining out gnats. We talked about the fact
that you need probable cause under the PATRIOT Act. You do not need it
under existing law. You can go to a grand jury under existing law and
get this information, right now.
I would submit that we are not thinking straight. We are at war with
terrorists. We need to respond to what we most fear: A chemical,
biological, or nuclear attack. Or even a conventional weapon used in a
pretty horrific way, with dirty weapons, dirty nuclear material. That
is a fact. I am not inventing something. I have had 50 hearings on
this.
The bottom line is, you remove this from the PATRIOT Act, and they
can still do all the bad things they want. Under the PATRIOT Act, you
have to go to the Justice Department, you have to go to FISA, and then
you have to get a court order. I would submit it is a safer way.
The advantage is you do not have to tell a whole lot of people you
are doing it. You get the records of what they are reading, what they
are talking about, and then know whether we need to act more strongly.
Mr. SANDERS. Mr. Chairman, I yield 45 seconds to the gentleman from
Washington (Mr. McDermott).
(Mr. McDERMOTT asked and was given permission to revise and extend
his remarks.)
Mr. McDERMOTT. Mr. Chairman, in the Bush-CIA-created democracy in
Iraq, they just adopted martial law. The human rights minister said it
is just like the American PATRIOT Act.
The Congress has tackled some unusual legislation recently. The
Senate just voted to reaffirm that we actually support the Geneva
Conventions, and today we are in the House debating no less than the
freedoms guaranteed by the first amendment in our Constitution,
freedoms that were compromised in a rush to judgment by this
administration.
They did not get in martial law here yet, but they have got it in
mind. They want to have the government able to reach into our lives, no
matter what we are doing, no matter what you read in the library. Do
not buy a ticket to ``Fahrenheit 9/11'' on the Internet, because they
will get your Internet records. They are going to get everything about
your life, and they will continue to do it until we finally wind up
with martial law.
The amendment before the House would grant Americans the freedom to
read books from the local library or your favorite bookstore, without
the FBI looking over your shoulder.
Yes, we are here to restore one of the founding principles of this
Nation. Today, we have to legislate freedom. There is a strong
possibility that Republicans will vote against the amendment and kill
the right for an American to read without fear of snooping by the
government
There is every reason to believe that Americans will end this day not
really knowing whether the book they just checked out of the library
has placed them on the FBI watch list. Who is to say what books might
get you placed under surveillance by the government.
Maybe you like history and want to know about the people who led
nations against us. That alone would prompt Attorney General John
Ashcroft to consider you a subversive. And, you will never know.
The so-called Patriot Act has made a patsy out of the first
amendment. There is a secret court that can let the government peer
into your private life. They can pry, snoop, spy, intrude, watch, poke
around, and access your records, your life, without your knowledge,
forget about consent.
The Attorney General wants the power. He insists he must have the
power to protect America from Americans, any American he deems shady.
What's the threshold? Well, that's a secret and a moving target. Today,
maybe John Ashcroft won't like Catcher in the Rye and consider you
subversive if you check it out. Tomorrow, maybe it will be The Great
Gatsby, or perhaps Germany's Secret Weapons of World War II, or The Da
Vinci Code. There's no limit to what the Attorney General might
consider subversive. There's no limit to the spying he can order.
There's no limit on government intrusion in your life. There are,
however, new limits, severe limits to what this country is all about--
freedom.
Are there bad people out there? Of course there are. And there are
effective laws available to the Attorney General and the FBI to
[[Page H5355]]
find these people. Every American does not need to be put under
surveillance in order to protect America.
If you let government break into any American's private life without
a rational check and balance, a cold wind will blow across this Nation
and make us less free and no less vulnerable. We can fight the war on
terror without declaring war on freedom. We can keep America safe and
keep America free.
I urge the House to restore freedom to every American. I urge the
House to pass the Freedom to Read Protection Act. If we are to remain
the Land of the Free, we need to defend civil liberty as vigorously as
we prosecute the war on terror.
Mr. SANDERS. Mr. Chairman, I yield myself the balance of my time.
Mr. Chairman, let me conclude. I am distressed by anybody in this
body who suggests that any Member of this body is not going to do
everything that he or she can to fight terrorism. We are all in that
together. But in the process of fighting terrorism, it is imperative
that this body maintain the basic constitutional rights which have made
us a free country.
There is nothing in this amendment which prohibits the FBI or the
government from going into libraries or bookstores as quickly as they
can when they have to. This legislation that we are supporting is
supported by conservatives, by moderates, by progressives, by people
who are fighting hard, not only against terrorism, but fighting hard to
maintain the basic freedoms which make our country the envy of the
world and a free Nation. And in the fight against terrorism, we have
got to keep our eyes on two prizes, the terrorists and the United
States Constitution.
Mr. WOLF. Mr. Chairman, I move to strike the last word.
Mr. Chairman, I again rise in opposition. The debate has been good,
though; and I think it is good we have had it.
Let me say, first, that the PATRIOT Act does not allow or authorize
martial law. It is important we know that. It does not.
Second, in the statement the gentleman from New York (Mr. Nadler)
made, it was inaccurate when he stated that grand jury subpoenas issued
for business records, including library records, in ordinary criminal
investigations are governed by a probable cause standard. That is not
so. Rather, grand jury subpoenas in criminal investigations are
governed by a standard of relevance, the same standard that applies to
the issuance of court orders for the production of business records in
intelligence investigations pursuant to section 215 of the PATRIOT Act.
So, really, you cannot just get down here and say this and say that,
because we are moving people. People are listening back in their
offices.
Third, there has been a lot of talk about legal issues here. We have
not been hit since 9/11. No one has died in an attack on this country
since 9/11. We know that.
We also know that al Qaeda, and frankly, Osama bin Laden lived in
Sudan from 1991 to 1995 and nobody did a darn thing about it. Nobody
did a thing about it. They could have picked him up several times, and
they did nothing about it. But we know that Osama bin Laden and others
want to bring about death and destruction and kill American citizens.
We have seen the beheading of Nicholas Berg and others.
Has the PATRIOT Act helped us and our safety? I believe it has, and
based on briefings that other Members on both sides have had, they do
believe that it has actually helped us and kept what took place at the
Pentagon, in my area, and I agree with what the gentleman from New York
(Mr. Serrano) said, up in their area, where they have deep, deep
concern. We know it does and has helped.
Now, on this amendment, was Mr. Mueller, the Director of the FBI, and
the gentleman from New York (Mr. Serrano) would agree, has been asked
what he thinks of this amendment? Has he been asked if this amendment
hurt their efforts with regard to cutting off al Qaeda and other groups
from killing United States citizens?
We see the letter that came from the Justice Department. I put it in
the Record. It said, ``You should know,'' this was to the gentleman
from Wisconsin (Mr. Sensenbrenner), ``we have confirmed that as
recently as this past winter and spring,'' winter and spring, two times
apparently, ``a member of a terrorist group closely affiliated with al
Qaeda,'' the al Qaeda who did the 9/11, al Qaeda who did Tanzania, al
Qaeda who did Nairobi, al Qaeda who did the USS Cole, al Qaeda who did
the World Trade Center in 1993, that al Qaeda that ``used Internet
services provided by a public library.''
Now, this says in here to the gentleman from Wisconsin (Mr.
Sensenbrenner) that in the winter and the spring somebody connected
with al Qaeda used the Internet at a public library. If we can stop
what took place in my area with regard to the Pentagon, then I want to
stop that, because we have gone to enough funerals, and you all have
gone to enough, and two of my children live in New York City, and I
know how the gentleman from New York (Mr. Serrano) and those of you
feel. It says they have used it.
Lastly, will this create a safe haven? I do not know. Let us let the
gentleman from Michigan (Mr. Conyers) and the gentleman from Wisconsin
(Mr. Sensenbrenner) and the members of the Committee on the Judiciary
look at it.
It comes to an end. The Congress had wisdom to bring it to a sunset
in 2005. Have hearings been held? I would ask the gentleman, Have
hearings been held on this issue by the Committee on the Judiciary?
There have not been. I see the gentleman from Michigan (Mr. Conyers),
and I say to the gentleman from Michigan (Mr. Conyers), I will not be
at that 2 o'clock meeting we are going to have. The hearings have not
been held.
Since hearings have not been held, since the FBI has not been asked,
since we have not been hit, I strongly urge Members on both sides, even
though you have reservations and doubts, to vote down this amendment
and allow the gentleman from Wisconsin (Mr. Sensenbrenner) and the
gentleman from Michigan (Mr. Conyers) to do their work and make sure
that whatever they do is appropriate and constitutional and in the best
interests of this country.
Mr. Chairman. I urge members for a ``no'' vote.
Ms. HARMAN. Mr. Chairman, although I have expressed serious concerns
about our government's ability to search library and book store
records, I do not believe that the Sanders amendment is the proper
vehicle for addressing this concern. I will reluctantly oppose it.
The PATRIOT Act is a flawed law. It was passed just 7 weeks after
September 11, 2001, without meaningful debate about how its new, wide-
ranging powers would impact civil liberties. The Act contains some
important provisions, such as modernizing law enforcement tools. But it
also contains some highly problematic provisions, such as those that
potentially give law enforcement officials a license to go on fishing
expeditions for personal information unrelated to terrorism.
I believe we must carefully review the PATRIOT Act when it comes up
for reauthorization next year. Congress should decide which provisions
are necessary to win the war on terrorism, and which are unnecessarily
harmful to civil liberties. This process should not be done ``on the
fly'' in the middle of an election year, before we have an opportunity
to understand the Act's full ramifications.
That is why I also oppose any effort to make permanent the PATRIOT
Act. We adopted this bill in a rush. We wisely included sunset
provisions that kick-in after sufficient time has passed to allow us to
carefully assess the effectiveness of the provisions and their impact
on civil liberties. Let's not rush to make permanent any of the
provisions without the careful review we initially envisioned.
The responsible course of action is to revise the PATRIOT Act after
we understand how best to improve it.
Mr. OTTER. Mr. Chairman, the freedom to read what we want--it may not
be the first thing that comes to mind when we talk about those basic,
unalienable rights for which generations of American heroes have fought
and died. The idea of a government controlling what we read is the
stuff of history books and horror stories about tyrants and dictators.
It is not something we expect to face here in America--the Land of the
Free.
That was before the passage of the USA PATRIOT Act. Section 215 of
that law has given Americans reason to wonder whether the government
might be looking over their shoulders when they check out books and
materials from their local library. It has dangerously undermined the
people's confidence in their government and threatens the precious
freedoms we enjoy under the First amendment.
[[Page H5356]]
That's why I support this amendment today. I fully recognize the need
to provide our law enforcement officers with the tools necessary to
combat terrorism and keep Americans safe. However, security bought at
the price of the freedoms on which our Nation was founded is no real
security at all. Certain parts of the Patriot Act, including Section
215, may have seemed understandable in the short term, but they are
intolerable over time. We need to set things right before our precious
constitutional rights are eroded beyond recognition.
We sacrifice something much more dear than our physical safety when
we fail to be diligent in defending our freedoms. Once lost, they
seldom if ever are regained. And whether the tyranny that robs me of my
liberties comes from abroad or starts here at home makes no difference.
It is equally unwelcome. I am just as committed to protecting Americans
from their own government's excesses as from the violence of foreign
extremists.
The degree to which that commitment has captured America's
imagination and has found growing support here among my colleagues is
one of the most gratifying experiences in my public life. A vote for
this amendment is a vote to restore Americans' confidence in the
ability of Congress to protect the freedoms they hold dear.
Mr. WOLF. Mr. Chairman, I yield back the balance of my time.
The CHAIRMAN. The question is on the amendment offered by the
gentleman from Vermont (Mr. Sanders).
The question was taken; and the Chairman announced that the noes
appeared to have it.
Mr. SANDERS. Mr. Chairman, I demand a recorded vote.
The CHAIRMAN. Pursuant to clause 6 of rule XVIII, further proceedings
on the amendment offered by the gentleman from Vermont (Mr. Sanders)
will be postponed.
[...]
Amendment No. 4 Offered by Mr. Otter
Mr. OTTER. Mr. Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 4 offered by Mr. Otter:
Insert before the short title at the end the following:
TITLE VIII--NOTICE OF SEARCH WARRANTS
Sec. 801. Section 3103a of title 18, United States Code, is
amended--
(1) in subsection (b)--
(A) in paragraph (1), by striking ``may have an adverse
result (as defined in section 2705)'' and inserting ``will
endanger the life or physical safety of an individual, result
in flight from prosecution, or result in the destruction of
or tampering with the evidence sought under the warrant'';
and
(B) in paragraph (3), by striking ``a reasonable period''
and all that follows and inserting ``seven calendar days,
which period, upon application of the Attorney General, the
Deputy Attorney General, or an Associate Attorney General,
may thereafter be extended by the court for additional
periods of up to seven calendar days each if the court finds,
for each application, reasonable cause to believe that notice
of the execution of the warrant will endanger the life or
physical safety of an individual, result in flight from
prosecution, or result in the destruction of or tampering
with the evidence sought under the warrant.''; and
(2) by adding at the end the following new subsection:
[[Page H5359]]
``(c) Reports.--(1) On a semiannual basis, the Attorney
General shall transmit to Congress and make public a report
concerning all requests for delays of notice, and for
extensions of delays of notice, with respect to warrants
under subsection (b).
``(2) Each report under paragraph (1) shall include, with
respect to the preceding six-month period--
``(A) the total number of requests for delays of notice
with respect to warrants under subsection (b);
``(B) the total number of such requests granted or denied;
and
``(C) for each request for delayed notice that was granted,
the total number of applications for extensions of the delay
of notice and the total number of such extensions granted or
denied.''.
The CHAIRMAN. Points of order are reserved.
Pursuant to the order of the House of yesterday, the gentleman from
Idaho (Mr. Otter) and a Member opposed will each control 5 minutes.
The Chair recognizes the gentleman from Idaho (Mr. Otter).
Mr. OTTER. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, earlier today on another amendment, we heard the
distinguished chairman of the subcommittee mention that we should leave
the PATRIOT Act and my amendments there up to the gentleman from
Wisconsin (Mr. Sensenbrenner) and up to the gentleman from Michigan
(Mr. Conyers).
Mr. Chairman, we did not leave the PATRIOT Act up to the Committee on
the Judiciary, up to the gentleman from Michigan (Mr. Conyers) and up
to the gentleman from Wisconsin (Mr. Sensenbrenner), as was discussed
and has never been refuted. This PATRIOT Act that we have been having
to deal with for the last 3 years was snuck in at the very last minute.
So the gentleman from Wisconsin (Mr. Sensenbrenner) and the gentleman
from Michigan (Mr. Conyers), who the chairman now wants to turn over
the jurisdiction for the PATRIOT Act, never got a chance to take a
final look at the actual PATRIOT Act itself.
Mr. Chairman, I rise today to discuss an amendment that, I believe,
renews an important balance between protecting our liberties and
protecting our Nation. I understand that the language is subject to a
point of order, and I am prepared to deal with that. However, this
issue drives to the core of who we are, or who I hope we are as
Americans. And I believe it is important to address today.
The fourth amendment which protects us from unreasonable searches and
seizures by government came from a firsthand experience of our Founding
Fathers. Then King George III called it what it really was, writs of
assistance, and before that it was also mentioned in the Magna Carta.
So what we have done with the PATRIOT Act and sneak-and-peek
provisions of search warrants has destroyed many, many years of efforts
by freedom fighters throughout the decades. This idea of individuality,
that each person is created unique, is something unique to the United
States and cannot and should not be taken away, especially not by its
own government. If we cannot trust our own government to not make war
on its own people, how can we trust this same government to make war
with our enemies? That is why I am so concerned about the way we have
expanded the power of government to do sneak-and-peek searches. The
issue at hand is not when or where or how often these warrants may be
executed or may be used; the fact that government has the power at all
should be something of great concern to all of us.
I do not doubt that the provisions of the PATRIOT Act that address
sneak-and-peek were well intended. It is important to know that we are
safe and secure within the borders of this country. Mr. Chairman, we
cannot, we will not be safe in this country unless we are secure under
the fourth amendment to the privacy of our own person and our own
property.
I understand that the sneak-and-peek warrants were used before the
passage of the PATRIOT Act. We discussed that earlier. There were
certain provisions which the authorities had to go through before they
could simply waltz into somebody's home. By broadening the use of the
sneak-and-peek warrants and making them the standard rather than the
exception, the PATRIOT act threatens our liberties that were given us
by our Creator and are now protected by the Constitution. That is why I
am offering this amendment today.
As Americans, I believe our fundamental belief that each of us is
ultimately responsible for safeguarding ourselves. It is our obligation
and our duty as citizens to this great Nation to see to it that we are
secure in our own liberties, and it is our responsibility first and
then the government's.
We would be justifiably enraged if some individual or a group acted
to destroy our Constitution, all at once to wipe away in one terrible
moment the centuries of struggle and countless lives sacrificed to
winning the liberties we hold so dear.
It is equally important that we jealously guard against allowing our
freedoms to be chipped away piece by piece before our eyes, that we do
all we can to hold back those small, but insignificant, strokes of
tyrannical erosion which can in time fell even the greatest of our
institutions, the Declaration of Independence and the Constitution of
the United States.
I am not the first to have these concerns. Those before me have said
it more eloquently than I. James Madison recognized the importance of
guarding our individual liberties with constant vigilance when he said:
``Since the general civilization of mankind, I believe there are more
instances of the abridgment of freedom of the people by gradual and
silent encroachments of those in power than by violent and sudden
usurpations.''
Ben Franklin was already quoted today. And Thomas Jefferson,
cautioning us against relinquishing our inalienable rights to even a
well-meaning government said: ``A freedom government is founded in
jealousy, not confidence. It is jealousy and not confidence which
prescribes limited constitutions to bind those we are obliged to trust
with power. So in questions of political power, speak to me not of
confidence in men, but bind them down from mischief with the chains of
the Constitution.''
Mr. Chairman, this is the deepest root in our tree of liberty and
that is the rights of individuals to be free to exercise under the
fourth amendment and to be secure in their own homes and their own
privacy. A vote for the people and not the government is a vote for
this amendment.
Mr. Chairman, I yield for the purpose of making a unanimous consent
request to the gentleman from Virginia (Mr. Scott).
(Mr. SCOTT of Virginia asked and was given permission to revise and
extend his remarks.)
Mr. SCOTT of Virginia. Mr. Chairman, I rise in support of the
amendment.
Mr. Chairman, I rise in support of the amendment offered by my
colleague, the gentleman from Idaho, of which I am a co-sponsor.
The Fourth Amendment provides that ``The right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.''
The Fourth Amendment's protections against unreasonable searches and
seizures are put into practice, in part, by the Federal Rules of
Criminal Procedure. Rule 41 specifically requires the government to
obtain a warrant before a search is conducted. It also requires that
the government give notice to a person whose property was seized during
a search, or from whose premises property was seized. And the Supreme
Court has traditionally held that an officer must knock and announce
his presence before serving a search warrant, absent exigent
circumstances such as reasonable belief such notice would jeopardize
life or limb, or result in destruction of evidence or escape of the
person named in the warrant. Moreover, while delayed notice for
searches of oral and wire communications are authorized by law under
certain conditions, as a general rule, covert physical searches for
physical evidence were not permitted prior to the PATRIOT Act.
The notice requirement enables the person whose property is to be
searched to assert his or her Fourth Amendment rights by pointing out
irregularities such as the police have the wrong address, or ensuring
that only those areas specified are searched, if the area to be
searched is a room in a house, that does not include the car in the
garage.
The so called ``sneak and peek'' secret search warrant provision
allows law enforcement to conduct a secret search on a person's
[[Page H5360]]
premises or computer without notice. If they get the wrong house or
business and it happens to be yours, you may never know about it. Or if
the search is conducted improperly, but nothing incriminating is found,
you may never know about it. Sneak and peek warrants provide no
sanction for failure to notify the subject of the search or for
unlawful activity if nobody is aware of it and if no incriminating
evidence is found. Law enforcement personnel will need to validate a
search only when property is seized and then delayed notice must be
given. Meanwhile, the notice can be weeks or even months after the
fact. And in that time period, several searches may have been conducted
without any results or continuing justification.
Moreover, this gives law enforcement officials access to someone's
personal property and information without the person's knowledge. Law
enforcement personnel can search through your drawers, go through your
files including medical and financial records, read your diaries, and
surf through computer websites you have visited, just to name a few
invasive practices. The person conducting the search will have access
to very private, very personal, information about you and your family,
without your knowledge. And what if the government agent conducting the
search happens to be your neighbor or someone you see at the store or
at a PTA meeting? Without your knowledge, that person has continuing
access to--and knows the most intimate of details about--your life.
This level of privacy invasion is unjustifiable.
Preventing terrorism has become a more urgent and necessary goal of
law enforcement since the 9/11 tragedies. Yet, we don't want to
accomplish for the terrorists something they could not accomplish
themselves--reducing the rights, freedoms, and protections our system
provides us all. The Otter amendment finds a working middle-ground that
will satisfy our country's need for heightened security while at the
same time ensuring that our freedoms and protections remain intact. The
amendment limits the reasons for sneak and peek warrants to three
specific circumstances, when notice would cause either the life or
physical safety of a person to be put in danger, flight from
prosecution, or the destruction of evidence. It also includes a seven-
day time limit for the delayed notice. This time limit creates a
pattern of uniformity for those involved in law enforcement and is a
reasonable period by which to inform the person subject to the warrant
of the clandestine search. In the case where a court finds that notice
of the warrant within the seven-day period will lead to one of the
three enunciated circumstances, the amendment authorizes unlimited
additional seven-day delays. This amendment encourages use of these
warrants in appropriate circumstances, will prevent misuse of the
practice, and ensures the protection of our civil liberties.
Encouraging the judiciary to issue sneak and peek warrants without
offering any meaningful guidance on their use will end in disaster.
This amendment is unequivocally American. It recognizes the need to
protect our country and our selves. It gives meaning to Section 213 of
the PATRIOT Act within the parameters of our democracy so that it can
be an effective tool rather than a wasted provision.
Mr. Chairman, safeguarding the rights guaranteed to us by the
Constitution is not a partisan issue. I ask my colleagues to join me in
support of this essential legislation to protect the rights of all
Americans.
Point of Order
Mr. WOLF. Mr. Chairman, I appreciate the gentleman's strong feelings
and he makes a very powerful case, and I can see how passionate he is
about it. I think this is one of those cases that ought to be done by
the gentleman from Michigan (Mr. Conyers) and the gentleman from
Wisconsin (Mr. Sensenbrenner).
As a result of that, Mr. Chairman, I make a point of order against
the amendment because it proposes to change existing law constituting
legislation in an appropriations bill and, therefore, violates clause 2
of rule XXI. The rule states in pertinent part: ``An amendment to a
general appropriation bill shall not be in order if changing existing
law.''
This amendment directly amends existing law. I ask for a ruling from
the Chair. I am certain that this will be an issue that will be
discussed quite deeply by the committee.
The CHAIRMAN. Does the gentleman from Idaho wish to be heard on the
point of order?
Mr. OTTER. Mr. Chairman, I fully appreciate what the good chairman
has said relative to my amendment and its being out of order.
Mr. Chairman, I withdraw the amendment.
The CHAIRMAN. The amendment is withdrawn.
[...]
Amendment No. 25 Offered by Mr. Sherman
Mr. SHERMAN. Mr. Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 25 offered by Mr. Sherman:
At the end of the bill (before the short title), insert the
following:
TITLE VIII--ADDITIONAL GENERAL PROVISIONS
Sec. 801. None of the funds made available in this Act may
be used to detain for more than 30 days a person, apprehended
on United States territory, solely because that person is
classified as an enemy combatant.
Sec. 802. None of the funds made available in this Act may
be used to defend in court the detention for more than 30
days of a person, apprehended on United States territory,
solely because that person is classified as an enemy
combatant.
Sec. 803. None of the funds made available in this Act may
be used to classify any person as an enemy combatant if that
person is apprehended on United States territory.
The CHAIRMAN. All points of order are reserved. Pursuant to the order
of the House of yesterday, the gentleman from California (Mr. Sherman)
and a Member opposed each will control 10 minutes.
The Chair recognizes the gentleman from California (Mr. Sherman).
(Mr. SHERMAN asked and was given permission to revise and extend his
remarks.)
Mr. SHERMAN. Mr. Chairman, I yield myself 5 minutes.
As I indicated, I have two amendments that I would hope that those
who wish to speak on either of them would be on the way to this floor.
My first amendment deals with the enemy combatant doctrine, and what
the bill does is that it provides that none of the funds in this act
can be used to detain for more than 30 days anyone apprehended on U.S.
territory solely because that person is identified as an enemy
combatant. That is to say, detention of over 30 days of anyone
apprehended in the United States would be done under our regular
criminal law.
Now, first let us talk about what this amendment is not. This
amendment does not try to protect our privacy. There will be incursions
into our privacy in this war on terror, but it is one thing to say the
government may know something about what we are doing or reading. It is
another thing to say that the executive branch alone can incarcerate
any of us permanently, and that is the wrong that this amendment
addresses.
Second, this amendment is not about those apprehended on foreign
battlefields or on any foreign territory. It addresses only those
apprehended on U.S. territory.
Third, this amendment does not authorize any Federal agency to do
anything. It is a limitation amendment,
[[Page H5366]]
and so by its terms, it prevents the use of funds to detain someone for
over 30 days. That does not authorize anyone to detain someone for 29
days. This is an additional limitation on the expenditure of funds.
Now, the enemy combatant doctrine is the most dangerous doctrine
propounded by anyone in this country. What does our criminal law do,
and how does it work? First, Congress defines what is a crime. Then the
judicial branch determines whether facts have occurred so that the
defendant is guilty of that crime.
What is the enemy combatant doctrine? The administration vaguely
defines what might be the crime, and that is subject to change any time
they want, and the administration, whoever that might be, determines
whether facts have occurred that cause someone to have committed that
crime or that wrong.
So is someone an enemy combatant if they plant a bomb? Are they an
enemy combatant if they applaud a bomb planter? Are they an enemy
combatant if they defend someone who applauds planting a bomb? We do
not know, but we do know that if you are classified as an enemy
combatant, you can be incarcerated immediately, permanently, or at
least until the end of the war on terror, which I would say means the
same as permanently.
Now, is someone a bomb planter, or is it a case of mistaken identity?
Under the enemy combatant doctrine, the courts do not determine whether
a particular individual planted a bomb. The executive branch
determines, locks the person up permanently or for as long as they
think that person is dangerous, no matter how mistaken they might be.
Now, the courts have not solved this problem. We do have a recent
court opinion, actually three of them, but in dealing with this issue,
we have not a majority opinion, but a plurality opinion. So the court
has not spoken with the majority. And on the key issues involved that I
am speaking about, they remanded the case to a lower court.
It is time now for Congress to do all it can to reign in this
doctrine of enemy combatants. To do otherwise, to be silent, as we have
been for over a year, is to acquiesce in a new doctrine of criminal law
where the executive can arrest anyone, after that arrest determine what
it is that makes up the definition of enemy combatant, and then decide
what facts have occurred, subject to no judicial review, as to whether
that person has, in fact, violated those wrongs as previously
determined by the administration. This is indeed a dangerous doctrine.
Today I do not know whether it is being misused, but if we do not
act, I assure you it will be misused in the future. Someone will be
erroneously accused of bomb-making by some local enemy of theirs. The
executive will have detained that person for as long as they think they
are dangerous and for as long as the war on terrorism continues. That
could be for a long time.
Tomorrow those who simply loudly protest the war on terrorism will be
called enemy combatants.
Mr. Chairman, I reserve the balance of my time.
Mr. WOLF. Mr. Chairman, I claim the time in opposition to the
amendment.
The CHAIRMAN. The Chair recognizes the gentleman from Virginia (Mr.
Wolf) for 10 minutes.
Mr. WOLF. Mr. Chairman, I yield 2\1/2\ minutes to the gentleman from
California (Mr. Hunter), the chairman of the Committee on Armed
Services.
Mr. HUNTER. Mr. Chairman, let me say one does not have to go too far
with this amendment before finding a very strong point for defeating
the amendment and objecting to it. Quoting section 802, it states that
none of the funds made available in this act may be used to defend in
court. So the U.S. cannot even send in people to defend in court the
detention for more than 30 days of a person apprehended on United
States territory solely because that person is classified as an enemy
combatant.
Very simply, we have people who have been in Guantanamo, in fact who
have been released from Guantanamo, who have been proven to have gone
back to the battlefield and taken up arms against the United States.
If the Sherman amendment passed, if we caught Osama bin Laden in the
U.S. tomorrow, the Department of Justice would not be able to legally
defend his detention as an enemy combatant. That makes absolutely no
sense.
It states further that none of the funds made available in this act
may be used to classify any person as an enemy combatant if that person
is apprehended on United States territory. We could have somebody
driving a hijacked airplane and clearly in an act of aggression against
the United States, and none of the funds available in this act, even if
that person intended and was attempting to drive that airplane into a
U.S. building, killing Americans, none of the funds in this act could
be used to classify that person as an enemy combatant.
So interestingly, the Supreme Court cases that have held on this
subject have said at least the combatant is entitled to some type of a
hearing to determine whether, in fact, he is a combatant and whether he
is being held legally. Well, a hearing requires that there are
attorneys present and that there are advocates for and against the
position. If we take section 208 of the Sherman amendment, we cannot
spend any of this money to have the lawyer representing the United
States of America to make his point that that person is a combatant and
that we cannot hold him for longer than 30 days.
I would simply ask Members to vote against this amendment on this
basis: It makes absolutely no sense. It in no way represents or
reflects determinations made in the relevant court cases with respect
to enemy combatants, detainees at Guantanamo or any other place.
Mr. SHERMAN. Mr. Chairman, I yield myself 1 minute.
Mr. Chairman, what we use to protect American citizens is our
criminal law. If bin Laden arrives in the United States, he has already
been indicted. If someone smashes an airplane into a building, I
suggest they be arrested for murder. What defends us from terrorists;
how do we deal with mass murderers? We arrest them.
Why do we need instead to use this new doctrine of enemy combatant?
To say that our only choice is to abdicate to the executive branch
determining who has committed a wrong and what wrongs justify
incarceration, or we have to incarcerate no one ignores the criminal
law as we know it.
Yes, those who commit crimes should be arrested and detained, not
under the doctrine of enemy combatancy, but under the doctrine of
criminal law.
Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from Washington
(Mr. Inslee).
(Mr. INSLEE asked and was given permission to revise and extend his
remarks.)
Mr. INSLEE. Mr. Chairman, while I was watching the spectacular
fireworks July 4 over the Washington Monument, I was reminded that our
Revolution and experiment in freedom and liberty is still going on. We
are still faced with struggles to protect our basic freedoms. We are
still faced with the need to occasionally rein in unchecked authority
of the executive branch of government.
We still need to stand up for the proposition that no Chief Executive
should be able to throw into a dark, deep cell an American citizen
without eventually affording that citizen a trial. That is a basic
American proposition.
We still believe that reviewing an incarceration decision by the
judicial system is the best way to ensure both security and liberty.
And make no mistake, we face real threats to our physical safety, and
those miscreants ought to be punished to the full extent of the law.
But we have always founded our democracy on the proposition that
detention ultimately must be subject to a hearing and a review, and we
should not abandon that principle now out of fear. In the words of
Supreme Court Justice Stevens, we ``have created a unique and
unprecedented threat to the freedom of every American citizen,'' and
that ``unconstrained executive detention for the purpose of
investigating and preventing subversive activity is the hallmark of the
Star Chamber.''
Freedom is not free. It demands us to stand up against threats to
freedom. It calls for us to speak against unchecked executive
authority, just like what was done in 1776. And while I disagree with
the gentleman from California (Mr. Sherman), I am against the right of
any President to throw someone in a dark cell and never give him a
trial.
[[Page H5367]]
Mr. WOLF. Mr. Chairman, I yield 2\1/2\ minutes to the gentleman from
New Jersey (Mr. Saxton).
Mr. SAXTON. Mr. Chairman, this amendment, while I believe misguided,
is nonetheless a very important amendment because it changes the
parameters, or at least it seeks to change the parameters, of the
definition of enemy combatant.
{time} 1445
It seeks to force in this case the United States to treat enemy
combatants as criminals rather than as enemy combatants, and it fails
to recognize, therefore, one very significant change that has taken
place, something that is very different about this war that then
existed in any war in modern history, and that is that there is no
doubt that the attacks of September 11 constituted acts of war, and,
therefore, by definition the United States territory, the 50 States and
our territories, are part of the battlefield.
The gentleman from California's (Mr. Sherman) amendment does not seek
to curb the definition of enemy combatant as it applies to Guantanamo
or as it applies to Iran or Afghanistan, just the United States. So the
gentleman makes a difference between the part of the battlefield that
is offshore and the part of the battlefield that is onshore in this
case. And I think that goes to create a mistake, because it places 30-
day limits on the detention of an enemy combatant by the Department of
Justice. What that means is that if the FBI apprehends an enemy
combatant in the process of trying to carry out an act of terrorism in
the United States, and he is charged by the Department of Justice and
imprisoned, he can only be held for 30 days, and that seems to me to go
in the wrong direction. It means that if Mohammad Atta were picked up
and identified as an enemy combatant, that he would have to be released
in 30 days.
The Sherman amendment kind of reminds me of when I chaired the
Subcommittee on Fisheries Conservation, Wildlife and Oceans for 6
years, and it sounds like what the gentleman from California (Mr.
Sherman) really wants to do is he wants the war on terror to be run
like a catch-and-release fish tournament, and that obviously is
something that we do not want to see done here.
So I urge my colleagues on both sides of the aisle to oppose this
well-intended amendment, but which takes us in exactly the opposite
direction we should be going.
Mr. SHERMAN. Mr. Chairman, I yield myself such time as I may consume.
The gentleman assumes that we have no criminal law. He suggests that
if a bomber is caught red-handed, we cannot charge him with being a
bomber. We cannot arrest him. We cannot indict him. We cannot try him.
We either have to release him, or we have to have this new doctrine of
enemy combatants. I suggest if we catch a bomber, we arrest him. He
suggests a doctrine in which anyone could be called an enemy combatant
for doing whatever the administration thinks is harmful to the United
States and incarcerated forever, and that the only alternative is to
release all terrorists to swim amongst us.
What a preposterous alternative. What an attempt to put in the hands
of the executive branch the right to arrest anyone and permanently
detain them and to say that the only alternative is to release Mohammad
Atta.
Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from New York
(Mr. Nadler).
Mr. NADLER. Mr. Chairman, in most of our wars, we have done things
that have trampled civil liberties in the name of national security.
Invariably we end up apologizing for it later when historians say that
the internment of the Japanese Americans in World War II or the Alien
and Sedition Acts of 1798 or whatever did not, in fact, aid national
security. We are doing it again.
The Supreme Court 1\1/2\ weeks ago made very clear that we cannot
simply hold people indefinitely by labeling them an enemy combatant.
They gave a broad hint that when the Padilla case comes up, they will
tell us that this amendment is mild, and that the power the President
claims to throw anybody in jail in the United States because the
gentleman from New Jersey (Mr. Saxton) says that the United States is a
battlefield and hold them there indefinitely simply on their own say-so
with no due process, this is a power that nobody has claimed since
before the Magna Carta. Habeas corpus was invented to say that the
President is a President; even a king is not a dictator.
Let me finally say that this amendment is necessary to say that we
will fight this war against the terrorists, but we will fight it as
Americans in the tradition of liberty.
The CHAIRMAN. The time of the gentleman from California (Mr. Sherman)
has expired.
Mr. SHERMAN. Mr. Chairman, I ask unanimous consent that each side be
given an additional 15 seconds.
The CHAIRMAN. Is there objection to the request of the gentleman from
California?
There was no objection.
Mr. SHERMAN. Mr. Chairman, I yield 15 seconds to the gentleman from
New York (Mr. Nadler).
Mr. NADLER. Mr. Chairman, I will quote from Sir Thomas More in the
play ``A Man for all Seasons,'' because we are told we must eliminate
our traditions of liberty to get at the terrorists. Sir Thomas More was
asked: ``So now you'd give the Devil benefit of law?
And More said: ``Yes. What would you do? Cut a great road through the
law to get after the devil?''
``I'd cut down every law in England to do that.''
And Sir Thomas More finally said: ``Oh? And when the last law was
down and the Devil turned round on you, where would you hide, the laws
all being flat? This country's planted thick with laws from coast to
coast, and if you cut them down, do you really think you could stand
upright in the winds that would blow then? Yes, I'd give the Devil
benefit of law, for my own safety's sake.''
And that is why this amendment must pass.
Mr. WOLF. Mr. Chairman, I yield 2\1/2\ minutes to the gentleman from
Michigan (Mr. Hoekstra).
Mr. HOEKSTRA. Mr. Chairman, I thank the gentleman for yielding me
this time.
This amendment raises serious constitutional issues which we should
not deal with on this appropriations bill. This amendment has no
limitations as to applying only to U.S. citizens or only applying to
the global war on terrorism. It applies to any situation where the U.S.
may be in conflict, and it would apply to anyone, not only U.S.
citizens.
Under the proposed amendment, the President would not be able to
detain anyone who is in this country on a mission for al Qaeda or any
organization or country that had chosen to attack the United States. He
would not be able to detain that person for more than 30 days as an
enemy combatant. Instead, he would have to release the citizen or that
person or prosecute him criminally. That change in the law would
deprive the Commander in Chief of one of the traditional tools used in
warfare and one that is particularly critical in the struggle with a
secretive enemy like the current war on terrorism, like al Qaeda,
because of the extent to which the United States must rely on
intelligence sources to ferret out al Qaeda plots.
The reason that the executive may need the ability to detain a
citizen as an enemy combatant is that proving a criminal case in court
will often require compromising critical intelligence sources. As the
Deputy Attorney General recently explained in discussing the Jose
Padilla case, the one and only case of an American citizen seized as an
enemy combatant in the United States, ``Had we tried to make a case
against Jose Padilla through our criminal justice system,'' it would
have ``jeopardized intelligence sources.'' And to be very clear, in
this war jeopardizing the intelligence sources means putting American
lives at risk. It is to avoid that very real threat to continued
success of the war effort that criminal prosecutions may not always be
a practical possibility for dealing with enemy combatants.
This amendment, although well intentioned, and though perhaps raising
some issues that need to be discussed, they should be discussed going
through the committee process and should not be hastily put onto an
appropriations bill as an amendment without going through a full
debate.
[[Page H5368]]
I urge my colleagues to be opposed to this amendment because of the
severe limitations it will place on the executive branch, it will place
on our ability to conduct not only a global war on terrorism, but any
enemy combatants in the future.
Mr. WOLF. Mr. Chairman, I yield 2\1/2\ minutes to the gentleman from
Indiana (Mr. Buyer), who serves on the Committee on Armed Services.
Mr. BUYER. Mr. Chairman, I think this is an area we have to be pretty
careful about. This is a very serious question, and, in fact, it raises
grave constitutional questions that are unsettled, the principles of
separation of power.
But with that aside, it also gets kind of confusing. So let us go
back to not only our own Constitution, but also the Geneva Conventions.
The Geneva Conventions under Article 5 say if one captures an
individual and they know who they are, then they are automatically by
the capturing power given POW status. If there is any doubt with regard
to their status, under the Geneva Conventions, the capturing power then
is to conduct what are called Article 5 tribunals.
What has happened here is when there is no doubt of the status of the
individual, the executive branch has made the decision, then obviously
they are not a POW; so they are not afforded the protections of the
Geneva Conventions. And if they are not afforded in a tribunal Article
5 because their status is not in doubt, there is a term of art that has
been used. They are called an enemy combatant, but they also can be
called security detainees, unprivileged belligerents, unlawful
combatants.
This is a very dangerous area what this amendment tries to do. It
tries to dance into the area of the executive branch and say we cannot
classify individuals as to these types of things.
Mr. Chairman, we are in a very unsettled part of the law. I have made
a couple of notes with regard to the speakers who spoke before me who
said that we need to rein in the doctrine. That is false because this
is a doctrine that has been used very sparingly. In the 3 years for
which we have had the war on terrorism, there is only one United States
citizen that has been classified as an enemy combatant and has been
detained, and if we were to only use the ``criminal process,'' what we
then do is jeopardize our intelligence. And we are operating a war
predominantly in the dark world. It is an intelligence war against a
secret enemy, and for us to jeopardize that by going to the public
domain is foolish on our part.
Doing this on an appropriations bill, number one, using the word
``foolish,'' that is foolish. We should not be doing that. The
gentleman would like to entertain greater discussions on this. Let us
take it through the authorizing committees, and let us, in fact, do
that.
The other said that it is unchecked executive authority. That is
false. It is not unchecked because we have the checks and balances, and
that is why this case was taken to the Supreme Court.
I also would like to note that there is nothing, nothing, in current
law requires resorting solely to criminal prosecutions. In the recent
Hamdi decision, the United States Supreme Court did not directly
address the Padilla scenario, but a majority of the Justices clearly
agreed that ``there is no bar to this Nation's holding one of its own
citizens as an enemy combatant.''
The CHAIRMAN. The gentleman from Virginia (Mr. Wolf) has 15 seconds
remaining.
Mr. WOLF. Mr. Chairman, I move to strike the last word.
Mr. Chairman, I yield to the gentleman from California (Mr. Cox),
chairman of the Select Committee on Homeland Security.
Mr. COX. Mr. Chairman, we are playing a dangerous game here. If the
gentleman from California (Mr. Sherman) had written an amendment that
dealt with how U.S. citizens are treated, whether they can be found to
be enemy combatants and detained, we might have had an interesting
discussion. There has been, for example, discussion of the Jose Padilla
case during this debate. But that is not the amendment that he wrote.
The amendment that he wrote does not even apply strictly to
terrorism. It applies to conventional warfare. So that if Adolph
Hitler's Panzer Division were to land here in America, every single one
of the Nazi troops would have to be sent through the judicial system.
We could not deal with them as an enemy force. If Kim Jong-il sends his
million-man army to land on America's shores, if they were to arrive in
amphibious vehicles and roll tanks through our streets, every single
one of those millions would have to be treated as a litigant in court
under this amendment.
We have never done this before. Least of all should we be doing this
in an appropriations bill. These sorts of novel concepts that strip the
Commander in Chief of his authority to conduct war for the United
States of America that I would say that go so far as to completely
upend the legal right of the United States to defend itself should not
be written on the back of an envelope and attached as authorizing
language essentially in an appropriations bill.
Here is what the amendment says. It is a very short amendment. It
says that we cannot use any of the funds available in this act to
detain for more than 30 days a person apprehended on U.S. territory
even if that person is an enemy combatant.
{time} 1500
So we are not talking about people who might or might not be enemies
of the United States. We are talking about people from foreign soil,
not U.S. citizens, whether they be generals or troops, armies, coming
over here. These people must be handled through the judicial legal
system.
This is an outrageous interference with the ability of the United
States to defend itself. It is very dangerous. I strongly urge my
colleagues to defeat it.
Mr. WOLF. Mr. Chairman, I yield 1 minute to the gentleman from
Alabama (Mr. Bachus).
Mr. BACHUS. Mr. Chairman, I thank the chairman for yielding me time.
Mr. Chairman, I would like to follow up on what the gentleman from
California said about this very simple amendment, and it is a very
simple amendment. It simply says that if Mohamad Atta, you remember
him, the leader of the 19 hijackers, if Mohamad Atta had been caught in
this country prior to 9/11, this act would prohibit him from being
classified as an enemy combatant. It would prohibit the funds to hold
him for more than 30 days; it would prohibit the Justice Department
from using any money to designate him as an enemy combatant.
If a terrorist in Iraq blows up a car bomb and it kills 50 people, he
can be held an unlimited amount of time. If he is in the United States,
this says if he is in the United States, whether he is a citizen or
not, he cannot be held for over 30 days, and this says no funds may be
used to classify any person as an enemy combatant.
Mr. Chairman, we are in a war; and there are people in this country
who are against us, and they need to be designated as such.
(Mrs. MALONEY asked and was given permission to revise and extend her
remarks.)
Mr. WOLF. Mr. Chairman, I yield myself the balance of my time.
Mr. Chairman, I rise in strong opposition to this amendment. To drop
this on this committee a day before it is brought up, I do not care
what side you are on, it just should not be done that way.
How would this amendment treat Osama bin Laden? How would it treat
Mohamad Atta? How would it treat people like that?
This amendment should be certainly covered by extensive hearings by
the Committee on the Judiciary and also the Committee on Armed
Services, but not language that we got yesterday with no opportunity to
look at the impact.
Would this language result in the release of a terrorist? Should we
look at and fully explore the ramifications and the consequences? Could
the result of this be the release of a terrorist within the United
States to commit further terrorist acts?
The amendment would prevent an enemy combatant from being detained,
would prevent Osama bin Laden, let us not say enemy combatant, would
prevent Osama bin Laden from being detained for more than 30 days. What
is the rationale for only being able to detain Osama bin Laden for 30
days? Should it be 45 days?
[[Page H5369]]
A bad amendment, late, not the approach. I urge a ``no'' vote.
Mrs. MALONEY. Mr. Chairman, I rise today in support of the Sherman
amendment that would limit the use of the enemy combatant doctrine to
detain persons indefinitely.
While this amendment would only apply to those apprehended on U.S.
soil, the government has detained American citizens, individuals whose
rights are without a doubt protected by the U.S. Constitution, without
charging them or allowing their case to be brought before our judicial
system. This is simply wrong.
How can we expect the rest of the world to respect our way of life if
we do not even adhere to the principles we claim to hold dear?
How can we expect our own constituents to believe in the protection
of their rights if the rights of others are trampled on?
The Supreme Court recently determined that foreign citizens detained
at Guantanamo Bay and American citizens detained in military brigs are
entitled to their day in court.
Clearly, it's time that this Administration begin to respect the
rights of the people it claims are criminals. The Fifth Amendment of
the Constitution provides for due process of law, and it's time we
remembered that.
I thank my friend Representative Sherman for offering this amendment
today, and I urge my colleagues to support his amendment.
Mr. WOLF. Mr. Chairman, I yield back the balance of my time.
The CHAIRMAN. The question is on the amendment offered by the
gentleman from California (Mr. Sherman).
The amendment was rejected.
[...]
Amendment No. 2 Offered by Mr. Sanders
The CHAIRMAN. The pending business is the demand for a recorded vote
on the amendment offered by the gentleman from Vermont (Mr. Sanders) on
which further proceedings were postponed and on which the noes
prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.
Recorded Vote
The CHAIRMAN. A recorded vote has been demanded.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 210,
noes 210, answered ``present'' 1, not voting 13, as follows:
[Roll No. 339]
AYES--210
Abercrombie
Ackerman
Alexander
Allen
Andrews
Baca
Baird
Baldwin
Bartlett (MD)
Becerra
Berkley
Berman
Bishop (NY)
Boswell
Boucher
Boyd
Brady (PA)
Brown (OH)
Brown, Corrine
Capps
Capuano
Cardin
Cardoza
Carson (OK)
Case
Castle
Chandler
Clay
Clyburn
Conyers
Cooper
Costello
Cramer
Crowley
Cummings
Davis (AL)
Davis (CA)
Davis (FL)
Davis (IL)
Davis (TN)
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Dooley (CA)
Doyle
Duncan
Ehlers
[[Page H5374]]
Emanuel
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Flake
Ford
Frank (MA)
Frost
Gonzalez
Gordon
Green (TX)
Grijalva
Gutierrez
Herseth
Hill
Hinojosa
Hoeffel
Holden
Holt
Honda
Hooley (OR)
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
John
Johnson (IL)
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick
Kind
Kirk
Kleczka
Kucinich
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Leach
Lee
Levin
Lewis (GA)
Lipinski
Lowey
Lucas (KY)
Lynch
Majette
Maloney
Markey
Marshall
Matheson
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McGovern
McIntyre
McNulty
Meehan
Meek (FL)
Meeks (NY)
Menendez
Michaud
Millender-McDonald
Miller (NC)
Miller, George
Mollohan
Moore
Moran (KS)
Moran (VA)
Murtha
Nadler
Napolitano
Neal (MA)
Ney
Oberstar
Obey
Olver
Ortiz
Otter
Owens
Pallone
Pascrell
Pastor
Paul
Payne
Pelosi
Peterson (MN)
Petri
Pomeroy
Porter
Price (NC)
Rahall
Rangel
Renzi
Reyes
Rodriguez
Ross
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Sabo
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Sandlin
Schakowsky
Schiff
Scott (GA)
Scott (VA)
Serrano
Sherman
Simpson
Skelton
Slaughter
Snyder
Solis
Spratt
Stark
Strickland
Stupak
Tanner
Tauscher
Taylor (MS)
Thompson (CA)
Thompson (MS)
Tierney
Towns
Turner (TX)
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Waters
Watson
Watt
Waxman
Weiner
Weldon (PA)
Wexler
Woolsey
Wu
Wynn
Young (AK)
NOES--210
Aderholt
Akin
Bachus
Baker
Ballenger
Barrett (SC)
Barton (TX)
Bass
Beauprez
Bereuter
Biggert
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Bradley (NH)
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Burgess
Burns
Burr
Burton (IN)
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Carter
Chabot
Chocola
Coble
Cole
Cox
Crane
Crenshaw
Cubin
Culberson
Cunningham
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeLay
DeMint
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Dreier
Dunn
Edwards
Emerson
English
Everett
Feeney
Ferguson
Foley
Forbes
Fossella
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Goode
Goodlatte
Goss
Granger
Graves
Green (WI)
Greenwood
Gutknecht
Hall
Harman
Harris
Hart
Hastert
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Hobson
Hoekstra
Hostettler
Houghton
Hulshof
Hunter
Hyde
Isakson
Issa
Istook
Jenkins
Johnson (CT)
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
King (IA)
King (NY)
Kingston
Kline
Knollenberg
Kolbe
Latham
LaTourette
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (OK)
Manzullo
McCotter
McCrery
McHugh
McInnis
McKeon
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Murphy
Musgrave
Myrick
Nethercutt
Neugebauer
Northup
Norwood
Nunes
Nussle
Osborne
Ose
Oxley
Pearce
Pence
Peterson (PA)
Pickering
Pitts
Platts
Pombo
Portman
Pryce (OH)
Putnam
Radanovich
Ramstad
Regula
Rehberg
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Royce
Ryan (WI)
Ryun (KS)
Saxton
Schrock
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Souder
Stearns
Stenholm
Sullivan
Sweeney
Tancredo
Taylor (NC)
Terry
Thomas
Thornberry
Tiahrt
Tiberi
Toomey
Turner (OH)
Upton
Vitter
Walden (OR)
Walsh
Wamp
Weldon (FL)
Weller
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (FL)
ANSWERED ``PRESENT''--1
Lofgren
NOT VOTING--13
Bell
Berry
Bishop (GA)
Blumenauer
Carson (IN)
Collins
Deutsch
Gephardt
Hastings (FL)
Hinchey
LaHood
Quinn
Tauzin
Announcement by the Chairman
The CHAIRMAN (during the vote). Members are advised there are 2
minutes remaining in this vote.
Parliamentary Inquiry
Mr. SANDERS (during the vote). Mr. Chairman, I have a parliamentary
inquiry.
The CHAIRMAN. The gentleman from Vermont will state his parliamentary
inquiry.
Mr. SANDERS. Mr. Chairman, how much time is allowed for a vote to be
cast? My understanding is 17 minutes.
The CHAIRMAN. The minimum time for electroic voting on this question
is 15 minutes.
Mr. SANDERS. Will the gentleman tell me how much time has expired on
this vote at this point?
The CHAIRMAN. Longer than the minimum time.
Mr. SANDERS. My understanding is over 24 minutes have expired.
Parliamentary Inquiry
Mr. NADLER (during the vote). Mr. Chairman, I have a parliamentary
inquiry.
The CHAIRMAN. The gentleman from New York will state his
parliamentary inquiry.
Mr. NADLER. My parliamentary inquiry is twofold. How much time has
elapsed on this vote, and how much time will be allowed on this vote
beyond what the rules provide for? How much time has elapsed on this
vote? The time has expired.
How much time has elapsed on this vote? Are we going to hold this
vote open until enough arms are twisted?
The CHAIRMAN. The Chair would attempt to respond to the parliamentary
inquiry. The minimum time for this electronic vote, as stated earlier,
is 15 minutes. And, as always, if there are Members in the well
attempting to vote, the vote will remain open.
Parliamentary Inquiry
Mr. NADLER (during the vote). Mr. Chairman, I have a parliamentary
inquiry.
The CHAIRMAN. The gentleman from New York will state his
parliamentary inquiry.
Mr. NADLER. I have two parliamentary inquiries. One you did not
answer I asked before. How much time has elapsed on this vote so far?
Not the minimum. How much time so far has elapsed?
The CHAIRMAN. The Chair will repeat that the minimum requirement is
15 minutes. That has elapsed.
Mr. NADLER. That was not my question.
The CHAIRMAN. The time elapsed thus far is 29 minutes. As long as
there are Members wishing to vote in the well, the vote will remain
open.
Mr. NADLER. My second question, sir, is I do not see anyone in the
well waiting to vote. Is there anyone in the well waiting to vote?
Parliamentary Inquiry
Ms. PELOSI (during the vote). Mr. Chairman, I have a parliamentary
inquiry.
The CHAIRMAN. The gentlewoman will state her parliamentary inquiry.
Ms. PELOSI. Mr. Chairman, in a previous response to a parliamentary
inquiry, the Chair stated the vote would remain open as long as there
were Members in the well wishing to vote. That case does not exist at
this time, so when will the Chair be gaveling this vote down?
Mr. Chairman, apparently the basis for the Chair's response before is
no longer true. Members are not in the well wishing to vote.
The CHAIRMAN. The Chair would remind Members that the rules state
that the vote shall be open for a minimum of 15 minutes, and as long as
there are Members in the well to vote, the vote will remain open.
Ms. PELOSI. Mr. Chairman, how long has the vote been open?
The CHAIRMAN. The Chair is about to ask if any Member wishes to
change his or her vote, so that changes may be reported.
{time} 1622
Ms. HARRIS, Mrs. CUBIN, Messrs. GILCHREST, BEREUTER, TOM DAVIS of
Virginia, BILIRAKIS, KINGSTON, SMITH of Michigan, BISHOP of Utah, WAMP,
TANCREDO and Mrs. MUSGRAVE changed their vote from ``aye'' to ``no.''
Messrs. ACKERMAN, LANGEVIN, ALEXANDER, CRAMER, and SHERMAN changed
their vote from ``no'' to ``aye.''
So the amendment was rejected.
The result of the vote was announced as above recorded.
[...]
Motion to Recommit Offered By Mr. Hoyer
Mr. HOYER. Mr. Speaker, I offer a motion to recommit.
The SPEAKER pro tempore (Mr. Thornberry). Is the gentleman opposed to
the bill?
Mr. HOYER. In its present form, I am.
The SPEAKER pro tempore. The Clerk will report the motion to
recommit.
The Clerk read as follows:
Mr. Hoyer of Maryland moves to recommit the bill, H.R.
4754, to the Committee on Appropriations with instructions to
report the bill forthwith with the following amendment:
At the end of the bill (before the short title), insert the
following new title:
TITLE VIII--ADDITIONAL GENERAL PROVISIONS
Sec. 801. None of the funds made available in this Act may
be used to make an application under section 501 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1861) for an order requiring the production of library
circulation records, library patron lists, library Internet
records, book sales records, or book customer lists.
The SPEAKER pro tempore. The gentleman from Maryland (Mr. Hoyer) is
recognized for 5 minutes in support of his motion.
Mr. HOYER. Mr. Speaker, some time ago we passed an act. It was called
the PATRIOT Act. It was voted upon by the overwhelming majority of us.
The objective then was to ensure the safety of democracy and the
survival of freedom. That was the objective of the PATRIOT Act.
Now, there are many in this House, indeed the majority, who believed
that there were provisions in that act that undermined democracy. The
gentleman from Vermont (Mr. Sanders) and the gentleman from Idaho (Mr.
Otter) and others raised a very specific provision of that PATRIOT Act
as undermining of our democracy, of our civil liberties, and of our
freedom.
The vote was called on that amendment, and at the expiration of 15
minutes, the majority of the House indicated that they supported the
amendment offered by the gentleman from Vermont (Mr. Sanders), the
gentleman from Idaho (Mr. Otter), and others. And then the vote
continued, and it continued, and it continued, for over twice as long
as the Speaker of the House early this year indicated votes would be
held; indeed, for 38 minutes.
Now, I say to my colleagues, let me remind my colleagues of the
remarks of our Vice President in 1987, when a similar tactic was
employed, and I am quoting the remarks of the Vice President of the
United States, Richard Cheney, who at that point in time was a Member
of this House. ``The Democrats,'' he said, ``have just performed the
most grievous insult inflicted on Republicans in my time in the House,
a vote held open for a shorter period of time.'' He went on to say that
it was ``the most arrogant, heavy-handed abuse of power I have ever
seen in the 10 years that I have been here.'' He went on to say,
referring to the Speaker of the House of Representatives at that time,
Jim Wright from the State of Texas, ``He is a heavy-handed son,'' and I
will delete the next two words, ``and he doesn't know any other way to
operate, and he will do anything he can to win at any price. There is
no sense of comity left,'' said the Vice President, Dick Cheney, then a
Member of the House of Representatives.
Perhaps he felt better after he said that.
But my friends, if you campaign on changing the tone in Washington,
if your objective was to bring comity to this House, if your objective,
by voting for the PATRIOT Act, was to protect democracy, then protect
it here. Protect it here in the People's House. Protect it here where
every one of you has an opportunity to say that we will have a fair
vote in a fair time frame, and the majority will prevail, not the
intimidated will prevail.
Mr. Speaker, I yield to the gentleman from Vermont (Mr. Sanders), the
sponsor of the amendment.
Mr. SANDERS. Mr. Speaker, let me begin by thanking the 191 Democrats
and 18 Republicans who voted for that important amendment, but I am not
going to discuss the substance of that amendment, because that debate
took place, and I respect the people on both sides of that debate.
But what I do not respect is that when we are having a debate about
basic American democratic rights and what our Constitution is supposed
to be, I resent bitterly, on behalf of the American people, that the
Republican leadership rigged the game. That is wrong. At the end of
nine innings of a baseball game, at the end of nine innings of a
baseball game, the team that has the most runs wins. At the end of the
17 minutes tonight, our side won, and it was not even close.
Now, what kind of lesson, what kind of lesson are we showing the
children of America when we tell them, get involved in the political
process, that we are a free country, that we are fighting
[[Page H5382]]
abroad for democracy, when we rig a vote on this floor? Shame, shame,
shame.
Mr. WOLF. Mr. Speaker, I rise in opposition to the motion to
recommit.
The SPEAKER pro tempore. The gentleman from Virginia (Mr. Wolf) is
recognized for 5 minutes.
Mr. WOLF. Mr. Speaker, I will just make one comment, and then I will
yield to the chairman of the Committee on the Judiciary.
I want to read a letter that came out today. I wish it had come up
yesterday and the day before, but it did not. I think every Member
ought to know; it deals with the Sanders amendment. Here is what it
says.
It says: ``Dear Chairman Sensenbrenner. In anticipation of the U.S.
House of Representatives' consideration of an amendment that would
prevent the Justice Department from obtaining records from public
libraries and book stores under section 215 of the USA PATRIOT Act,
your staff has recently inquired about whether terrorists have ever
utilized public library facilities to communicate with others about
committing acts of terrorism. The short answer is `Yes.' ''
And then they go on to say, ``You should know we have confirmed that,
as recently as this past winter and spring, a member of a terrorist
group closely affiliated with al Qaeda used Internet services provided
by a public library. This terrorist used the library's computer to
communicate with his confederates. Beyond this, we are unable to
comment.''
I wish the Justice Department letter had really come up yesterday or
the day before so all Members could have been able to see it before the
vote.
Mr. Speaker, I yield to the gentleman from Wisconsin (Mr.
Sensenbrenner).
Mr. SENSENBRENNER. Mr. Speaker, this motion to recommit should be
defeated as the amendment was defeated, and the reason is that section
215, which this amendment proposes to defund, provides more rights to
public libraries and booksellers than a grand jury subpoena would. Let
us look at what section 215 does.
First, it requires the FBI to get a court order. To get a court
order, a judge has to be convinced that the court order is necessary,
and the burden of proof is on the Justice Department.
The section has a narrow scope. It can only be used to obtain foreign
intelligence information not concerning a United States person or to
protect against international terrorism or clandestine intelligence
activities. That is what this motion to recommit proposes to do away
with.
So the people who are being protected are not United States persons,
and people who are engaged in international terrorism or clandestine
intelligence activities.
Section 215 cannot be used to investigate ordinary crimes or even
domestic terrorists.
The section preserves first amendment rights, and it expressly
provides that the FBI cannot conduct investigations of United States
persons solely on the basis of activities protected by the first
amendment to the Constitution of the United States.
Now, if section 215 goes down, then the Justice Department can get a
grand jury subpoena. Now, with a grand jury subpoena, there is no court
order, there is no court review, and the person who receives the grand
jury subpoena, a librarian or a bookseller, if you will, has to spend
thousands of dollars hiring a lawyer at their expense to make a motion
to quash the subpoena in the United States district court. And the
burden of proof is on the bookseller or the librarian who wants to have
the subpoena quashed.
I would submit to my colleagues that if we look at what this
amendment proposes to get rid of, it gets rid of a procedure that
grants more protection to booksellers and is of much narrower scope
than the alternative of the grand jury subpoena.
Let us use common sense and not emotion and vote this motion to
recommit down.
The SPEAKER pro tempore. All time for debate has expired.
Without objection, the previous question is ordered on the motion to
recommit.
There was no objection.
The SPEAKER pro tempore. The question is on the motion to recommit.
The question was taken; and the Speaker pro tempore announced that
the noes appeared to have it.
Recorded Vote
Mr. HOYER. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.
The SPEAKER pro tempore. Pursuant to clause 9 of rule XX, the Chair
will reduce to 5 minutes the time for an electronic vote on final
passage of the bill.
The vote was taken by electronic device, and there were--ayes 194,
noes 223, answered ``present'' 1, not voting 16, as follows:
[Roll No. 345]
AYES--194
Abercrombie
Ackerman
Alexander
Allen
Andrews
Baca
Baird
Baldwin
Becerra
Berkley
Berman
Bishop (NY)
Boswell
Boucher
Boyd
Brady (PA)
Brown (OH)
Brown, Corrine
Capps
Capuano
Cardin
Cardoza
Carson (OK)
Case
Chandler
Clay
Clyburn
Conyers
Cooper
Costello
Cramer
Crowley
Cummings
Davis (AL)
Davis (CA)
Davis (FL)
Davis (IL)
Davis (TN)
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Dooley (CA)
Doyle
Emanuel
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Ford
Frank (MA)
Frost
Gonzalez
Gordon
Green (TX)
Grijalva
Gutierrez
Harman
Herseth
Hill
Hinojosa
Hoeffel
Holden
Holt
Honda
Hooley (OR)
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
John
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick
Kind
Kleczka
Kucinich
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Leach
Lee
Levin
Lewis (GA)
Lipinski
Lowey
Lucas (KY)
Lynch
Majette
Maloney
Markey
Marshall
Matheson
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McGovern
McIntyre
McNulty
Meehan
Meek (FL)
Meeks (NY)
Menendez
Michaud
Millender-McDonald
Miller (NC)
Miller, George
Mollohan
Moore
Moran (VA)
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Pastor
Paul
Payne
Pelosi
Peterson (MN)
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rodriguez
Ross
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Sabo
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Sandlin
Schakowsky
Schiff
Scott (GA)
Scott (VA)
Serrano
Sherman
Skelton
Slaughter
Snyder
Solis
Spratt
Stark
Strickland
Stupak
Tanner
Tauscher
Taylor (MS)
Thompson (CA)
Thompson (MS)
Tierney
Towns
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Waters
Watson
Watt
Waxman
Weiner
Wexler
Woolsey
Wu
Wynn
NOES--223
Aderholt
Akin
Bachus
Baker
Ballenger
Barrett (SC)
Bartlett (MD)
Barton (TX)
Bass
Beauprez
Bereuter
Biggert
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Bradley (NH)
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Burgess
Burns
Burr
Burton (IN)
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Carter
Castle
Chabot
Chocola
Coble
Cole
Cox
Crane
Crenshaw
Cubin
Culberson
Cunningham
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeLay
DeMint
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Dreier
Duncan
Dunn
Edwards
Ehlers
Emerson
English
Everett
Feeney
Ferguson
Flake
Forbes
Fossella
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Goode
Goodlatte
Goss
Granger
Graves
Green (WI)
Greenwood
Gutknecht
Hall
Harris
Hart
Hastert
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Hobson
Hoekstra
Hostettler
Houghton
Hulshof
Hunter
Hyde
Issa
Istook
Jenkins
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
Latham
LaTourette
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (OK)
Manzullo
McCotter
McCrery
McHugh
McInnis
McKeon
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Moran (KS)
Murphy
Musgrave
Myrick
Nethercutt
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Osborne
Ose
Otter
Oxley
Pearce
Pence
Peterson (PA)
Petri
Pickering
Pitts
Platts
Pombo
Porter
Portman
Pryce (OH)
Putnam
Radanovich
Ramstad
Regula
[[Page H5383]]
Rehberg
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Royce
Ryan (WI)
Ryun (KS)
Saxton
Schrock
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Souder
Stearns
Stenholm
Sullivan
Sweeney
Tancredo
Taylor (NC)
Terry
Thomas
Thornberry
Tiahrt
Tiberi
Toomey
Turner (OH)
Upton
Vitter
Walden (OR)
Walsh
Wamp
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)
ANSWERED ``PRESENT''--1
Lofgren
NOT VOTING--16
Bell
Berry
Bishop (GA)
Blumenauer
Carson (IN)
Collins
Deutsch
Foley
Gephardt
Hastings (FL)
Hinchey
Isakson
LaHood
Quinn
Tauzin
Turner (TX)
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore (Mr. Thornberry) (during the vote). Members
are reminded there are 2 minutes to cast their votes.
{time} 1732
So the motion was rejected.
The result of the vote was announced as above recorded.
The SPEAKER pro tempore. The question is on passage of the bill.
Pursuant to clause 10 of rule XX, the yeas and nays are ordered.
This will be a 5-minute vote.
The vote was taken by electronic device, and there were--yeas 397,
nays 18, not voting 18, as follows:
[Roll No. 346]
YEAS--397
Abercrombie
Ackerman
Aderholt
Akin
Alexander
Allen
Andrews
Baca
Bachus
Baird
Baker
Baldwin
Ballenger
Barrett (SC)
Bartlett (MD)
Barton (TX)
Bass
Beauprez
Becerra
Bereuter
Berkley
Berman
Berry
Biggert
Bilirakis
Bishop (NY)
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Boswell
Boucher
Boyd
Bradley (NH)
Brady (PA)
Brady (TX)
Brown (OH)
Brown (SC)
Brown, Corrine
Brown-Waite, Ginny
Burgess
Burns
Burr
Burton (IN)
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Capps
Cardin
Cardoza
Carson (OK)
Carter
Case
Castle
Chabot
Chandler
Chocola
Clay
Clyburn
Coble
Cole
Conyers
Cooper
Costello
Cramer
Crane
Crenshaw
Crowley
Culberson
Cummings
Cunningham
Davis (AL)
Davis (CA)
Davis (FL)
Davis (IL)
Davis (TN)
Davis, Jo Ann
Davis, Tom
DeFazio
DeGette
Delahunt
DeLauro
DeLay
DeMint
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Dingell
Doggett
Dooley (CA)
Doolittle
Doyle
Dreier
Dunn
Edwards
Ehlers
Emanuel
Emerson
Engel
English
Eshoo
Etheridge
Evans
Everett
Farr
Fattah
Feeney
Ferguson
Filner
Foley
Forbes
Ford
Fossella
Frank (MA)
Frelinghuysen
Frost
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Gonzalez
Goode
Goodlatte
Gordon
Granger
Graves
Green (TX)
Green (WI)
Greenwood
Grijalva
Gutierrez
Hall
Harman
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Herger
Herseth
Hill
Hinojosa
Hobson
Hoeffel
Hoekstra
Holden
Holt
Honda
Hooley (OR)
Hostettler
Houghton
Hoyer
Hulshof
Hunter
Hyde
Inslee
Israel
Issa
Istook
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Jenkins
John
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (OH)
Kanjorski
Kaptur
Keller
Kelly
Kennedy (MN)
Kennedy (RI)
Kildee
Kilpatrick
Kind
King (IA)
King (NY)
Kingston
Kirk
Kleczka
Kline
Knollenberg
Kolbe
Kucinich
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Latham
LaTourette
Leach
Lee
Levin
Lewis (CA)
Lewis (GA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Lofgren
Lowey
Lucas (KY)
Lucas (OK)
Lynch
Majette
Maloney
Manzullo
Markey
Marshall
Matheson
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McCotter
McCrery
McDermott
McGovern
McHugh
McInnis
McIntyre
McKeon
McNulty
Meehan
Meek (FL)
Meeks (NY)
Menendez
Mica
Michaud
Millender-McDonald
Miller (MI)
Miller (NC)
Miller, Gary
Miller, George
Mollohan
Moore
Moran (KS)
Moran (VA)
Murphy
Murtha
Musgrave
Myrick
Nadler
Napolitano
Neal (MA)
Nethercutt
Neugebauer
Ney
Northup
Nunes
Nussle
Oberstar
Obey
Olver
Ortiz
Osborne
Ose
Owens
Oxley
Pallone
Pascrell
Pastor
Payne
Pearce
Pelosi
Pence
Peterson (MN)
Peterson (PA)
Pickering
Pitts
Platts
Pombo
Pomeroy
Porter
Portman
Price (NC)
Pryce (OH)
Putnam
Radanovich
Rahall
Ramstad
Rangel
Regula
Rehberg
Renzi
Reyes
Reynolds
Rodriguez
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Ross
Rothman
Roybal-Allard
Royce
Ruppersberger
Rush
Ryan (OH)
Ryan (WI)
Ryun (KS)
Sabo
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Sandlin
Saxton
Schakowsky
Schiff
Schrock
Scott (GA)
Scott (VA)
Sensenbrenner
Serrano
Sessions
Shaw
Shays
Sherman
Sherwood
Shimkus
Shuster
Simmons
Simpson
Skelton
Slaughter
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Solis
Souder
Spratt
Stark
Stearns
Stenholm
Strickland
Stupak
Sullivan
Sweeney
Tancredo
Tanner
Tauscher
Taylor (NC)
Terry
Thomas
Thompson (CA)
Thompson (MS)
Thornberry
Tiahrt
Tiberi
Tierney
Towns
Turner (OH)
Udall (CO)
Udall (NM)
Upton
Van Hollen
Velazquez
Visclosky
Vitter
Walden (OR)
Walsh
Wamp
Waters
Watson
Watt
Weiner
Weldon (FL)
Weldon (PA)
Weller
Wexler
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Woolsey
Wu
Wynn
Young (AK)
Young (FL)
NAYS--18
Capuano
Cubin
Deal (GA)
Duncan
Flake
Franks (AZ)
Gutknecht
Hefley
Hensarling
Jones (NC)
Miller (FL)
Norwood
Otter
Paul
Petri
Shadegg
Taylor (MS)
Toomey
NOT VOTING--18
Bell
Bishop (GA)
Blumenauer
Carson (IN)
Collins
Cox
Deutsch
Gephardt
Goss
Hastings (FL)
Hinchey
Isakson
Johnson, E. B.
LaHood
Quinn
Tauzin
Turner (TX)
Waxman
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore (Mr. Thornberry) (during the vote). Members
are advised 2 minutes remain in which to cast their votes.
{time} 1739
So the bill was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
____________________
