Science, State, Justice, Commerce, and Related Agencies Appropriations Act, 2006
SCIENCE, STATE, JUSTICE, COMMERCE, AND RELATED AGENCIES APPROPRIATIONS ACT, 2006 -- (House of Representatives - June 15, 2005)
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AMENDMENT NO. 21 OFFERED BY MR. HOSTETTLER
Mr. HOSTETTLER. Mr. Chairman, I offer an amendment.
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Mr. NADLER. Mr. Chairman, I rise to claim the time in opposition to the amendment.
The CHAIRMAN. The gentleman from New York (Mr. Nadler) is recognized for 5 minutes.
Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, the issue in this amendment has nothing to do with the Ten Commandments. It has nothing to do with whether the Ten Commandments, or a sculpture of them, I assume, should be removed from wherever it is in Indiana. The issue in this amendment is should Congress prohibit the enforcement of a decree of a Federal court. There is nothing more fundamental to the rule of law in this country that once a Federal court issues a decision, sometimes it may be appealable, but once there is a final court order, that is the law.
Chief Justice Marshall said in Marbury v. Madison 200 years ago, and I know that the gentleman from Indiana stated he thinks that case was wrongly decided, and he is entitled to his opinion, but it is the foundation of law in this country that it is emphatically the duty of the judiciary to say what the law is.
If Congress wants to change the law, that is our prerogative. If we want to begin the process of amending the Constitution, that is our prerogative. But in terms of interpreting what the law is, what the Constitution commands, what the law passed pursuant to the Constitution says, that is the job of the courts. To fail to enforce court orders, to arrogate to this body the right to say that we do not like a particular decision, we do not agree with the court's interpretation of the Constitution, we do not agree with the court's interpretation of a law that we passed, therefore they may not enforce the law, is to say that we are no longer a Nation of laws. It is to say that we are no longer a Nation governed by a Constitution.
This amendment is subversive in the extreme. If we can adopt this amendment saying that we shall not enforce the decision "no funds herein appropriated may be used to enforce the decision of the court," in this particular instance in the Southern District of Indiana, then we can pass a bill that says we shall not enforce a decision of the court that says so and so may not go to jail or so and so must go to jail or anything else.
No Member of this House who believes in the rule of law should vote for this amendment. The subject matter on which it is specifically aimed, the particular decision of the court, is not relevant. When President Eisenhower was faced in Little Rock, Arkansas, in 1957 with a question of sending in U.S. marshals to enforce the decree of the court in desegregating Little Rock High School, he did not approve of that decision. His biographers tell us he was not happy with it. But he sent in the U.S. marshals because the law, as decreed by the courts, as passed by Congress, as interpreted by the courts, must be enforced.
If that is not the case, if the court's determination of what the law is is not the final arbiter, which we had that once in our history, then the final arbiter becomes the cannons and the guns. The rule of law must be supreme in this country.
During the Clinton impeachment, we heard from the other side of the aisle about the rule of law. We disagreed with the rule of law dictated, but here there can be no question. The court orders must be enforced, and anyone who says that we shall not spend money to enforce a court order because I do not like that particular court order or we do not agree with that particular court order is subversive of liberty, subversive of the Constitution, subversive of every human right, and subversive of the very notion of American liberty and democracy.
This amendment should not be agreed to.
Mr. Chairman, I reserve the balance of my time.
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AMENDMENT NO. 15 OFFERED BY MR. SANDERS
Mr. SANDERS. Mr. Chairman, I offer an amendment.
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Mr. NADLER. Mr. Chairman, I thank the gentleman for yielding me time.
Mr. Chairman, I rise to support this amendment. What is the difference that this amendment will make? The difference is between good police work and fishing expeditions.
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 the government needs this information, that the government suspects someone is looking up how to make atomic bombs, then let the FBI go to a court and get a search warrant or show probable cause and get a subpoena. That is the American way. That is the way we have always done it.
The gentleman from Virginia says, well, we had an attack on 9/11. Indeed, we did. In my district, 3,000 people were killed; and he says, maybe, who knows, this power could be used to stop a future event. But we can say that about anything.
Ours is a government of limited powers. That is what distinguishes us from the Soviet Union or Communist China or any other tyranny; and those powers must be limited so as to protect liberty, even in the face of threats.
The gentleman says no instance of abuse has been shown. Well, sure, because all of this is secret. No instance of abuse can be shown.
Mr. Chairman, the point of this amendment is that we need not surrender fundamental liberty to protect ourselves from terrorism, and we should not; and this is why we should adopt this amendment. We can have our protection. We must have our protection. We must also have our liberty.
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AMENDMENT NO. 9 OFFERED BY MR. NADLER
Mr. NADLER. Mr. Chairman, I offer an amendment.
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Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, my amendment prohibits funds from being used to issue national security letters to health insurance companies under the provisions of section 505 of the PATRIOT Act.
Currently, any FBI field office director is authorized to issue secret national security letters to insurance providers without any judicial approval, not even a FISA court. These NSLs open the door to a secret seizure of highly personal medical information. The FBI, if this amendment passes, will still be able to get all these records because they have so many other tools available to them, which I will describe in a moment.
Almost limitless sensitive private information from health insurance companies, including medical records, can be collected secretly by simply issuing a national security letter under section 505 on an FBI field director's own assertion that the request is merely relevant to a national security investigation. These private health insurance records can be demanded without any court review or approval, not even a FISA court.
Worse yet, the target of the NSL will never know that his health records were inspected by government agents, because health insurance companies are barred by law from telling him or anyone else that the records were demanded.
Government officials already have access to so much of our personal information, such as credit reports, library use, and telephone communications. Do we want the government to keep files detailing our personal lifestyles as revealed by our medical histories, psychiatric profiles, lab studies, and diagnostic tests like CAT scans or MRIs?
Why does the FBI need access to health records? How is this information pertinent to a terrorist investigation? If somehow your medical records are, in fact, relevant to a terrorist investigation, the government should be required to explain to a judge, in a secret FISA court if need be, why that is, instead of simply allowing an FBI field agent to demand those records in secret.
In any criminal investigation the FBI can obtain a search warrant for documents or other tangible things if there is a judicial finding of probable cause that a crime has been or will be committed. The FBI can use grand jury subpoenas issued under the supervision of a judge and the U.S. Attorney. And in international terrorism cases, such as we are talking here, the FBI has sweeping authority to obtain business records, including medical records, under section 215, which we discussed a few moments ago.
Given these existing powers, there is no reason to authorize the FBI to issue unchecked and reviewable national security letters demanding personal medical records.
I am not seeking to repeal the PATRIOT Act. This amendment seeks only to modify the application of one provision that poses a serious potential to abuse. Through this very narrow amendment we can provide checks and balances with regard to our sensitive medical records.
However, since I was greatly restricted by the House rules, this amendment does not fully address all the problems created by section 505 and national security letters. I am hopeful I can work with the Committee on the Judiciary to address these problems more completely. This amendment addresses only the health insurance provider's records; not bank records, not credit company records, not credit bureau records, not car dealerships. But when it comes to health insurance, what terrorist has health insurance? The problem is that most, but not all, innocent Americans do have health insurance, and the FBI should not have easy access to this information, at least not without telling a judge why he needs this.
I have also introduced, along with the gentleman from Arizona (Mr. Flake), a stand-alone bill to address more fully the issues presented by section 505.
In Doe v. Ashcroft, the New York Federal District Court struck down this section on the grounds that it violates free speech rights under the first amendment, as well as the right to be free from unreasonable searches under the fourth amendment.
We can all agree that giving the FBI access to our most intimate private information is too great an intrusion of privacy to leave unlimited and unsupervised. We can be both safe and free. And if the FBI thinks that for a terrorist investigation it needs access to private medical records, let them at least show to a judge, in a secret FISA court, under section 215, which we did not take the power away from them to do, why that is relevant to an ongoing terrorist investigation.
Mr. Chairman, I reserve the balance of my time.
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Mr. FEENEY. Mr. Chairman, again, I appreciate the gentleman from Virginia (Mr. Wolf) yielding me this time, and he is exactly right. The Committee on the Judiciary has had no less than 10 hearings on the PATRIOT Act, including one specifically devoted to national security letters.
This may be an issue as we move forward on the process to find a way to reform or modify, but there have been no abuses. This is a solution in search of a problem. The fact of the matter is these types of subpoenas are already available to investigate insurance fraud or bad doctors. If we can use these subpoenas to find bad doctors taking advantage of the Medicare or the Medicaid system, why can we not use these subpoenas to track down a terrorist? We are not talking about medical personal records of anybody. We are talking about financial records.
Let us say theoretically, since there have been no abuses, let us say hypothetically al-Zawahiri was injured and sought medical attention. We could potentially track down the financing to locate him.
Let us suppose we had a known terrorist here in the United States that underwent plastic surgery to change his or her identity. We could track down the financial records to possibly intercept that.
These subpoenas have been used since 1996 under the Clinton administration as a tool for health care fraud investigations. If we can use these appropriately under the proper circumstances to find bad doctors, surely a national security letter can be used to track down evil terrorists.
I do not think this is a widespread tool being used on a regular basis, but there may come a time when we rue the day that we have taken away one more law enforcement tool to track down the bad guys.
Mr. NADLER. Mr. Chairman, there are no abuses we know of because they are all secret and they cannot tell us about abuses.
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Mr. NADLER. Mr. Chairman, I yield myself the balance of my time.
Mr. Chairman, this amendment does not carve out a sanctuary as the gentleman says, nor do they report to Congress. They report to Congress on other things, but on section 505 they report nothing. We get no information.
All this amendment says is if the FBI thinks that your personal medical records, and that is all we are talking about, the medical records from the medical insurance company, are relevant to a terrorist investigation, they go to a judge and tell him and he says yes. They can even go to a FISA court judge in a secret proceeding.
Also, we were told they can get these records by administrative proceedings on other subjects. On other subjects they get the proceedings, they ask you for the records about yourself, and you can move to quash it. You can challenge it. They do not go to the insurance company and say give me the records about him under administrative subpoenas.
Under this section, the government can go, the FBI can go to the insurance company and get your personal medical records without even telling any judge, even in a secret proceeding, why it is necessary. All this amendment says is if they want your personal medical records, they have to tell a judge why it is relevant, in secret, why it is relevant to a terrorist investigation. They do not have to not get the records, but they have to tell a judge why it is relevant, and the judge can say it is relevant.
That is the minimal standard we should insist on for liberty. Indeed, in other amendments we say it is not good enough, and I agree. But in this amendment, that is all we are asking. For personal medical records, if the government wants to rummage through your personal medical records, they should have to say to a judge in a FISA court in a secret proceeding why they think it is relevant to an investigation. Not why there is probable cause, but why it is relevant. It is a very low standard, and if the government cannot meet that standard, they should not have your personal medical record information.
I urge my colleagues to vote for this amendment.
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Mr. DANIEL E. LUNGREN of California. Mr. Chairman, let us understand first what we are talking about here. We are talking about national security letters, NSLs. They are administrative subpoenas that can be used in international counterterrorism and foreign counterintelligence investigations, not even domestic terrorist investigations. So we are limited to that category.
Secondly, some of the statements that have been made here are questionable in terms of their conclusions, that is, that there is no reporting to Congress. As a matter of fact, NSLs are reported to our intelligence committees, both the House and the Senate. Obviously, not all Members are on those committees, but it is my information that Members can go to the Permanent Select Committee on Intelligence and examine the documents presented by the Department of Justice in this regard.
The Supreme Court has upheld the use of administrative subpoenas where the demand is definite and the information sought is relevant. As with other types of subpoenas, the national security letter is a request for information and is not self-executing. In fact, they cannot enforce it. If the recipient refuses to accept the request for information, there is no enforcement mechanism. The FBI would have to obtain an enforcement order from a Federal court, not an NSL.
In fact, the Justice Department has argued both in and out of court that the current law allows for a recipient to obtain preenforcement judicial review of an NSL. As a matter of fact, some of us working on this on the Committee on the Judiciary believe that information ought to be presented to the recipient. They ought to be notified ahead of time, and that is one of the things we ought to be working on.
Mr. NADLER. Mr. Chairman, will the gentleman yield?
Mr. DANIEL E. LUNGREN of California. I yield to the gentleman from New York.
Mr. NADLER. Mr. Chairman, a NSL, unlike an administrative subpoena, is not the target of the inquiry and has no interest in contesting or refusing it.
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