USA Patriot and Terrorism Prevention Reauthorization Act of 2005

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

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Mr. NADLER. Mr. Chairman, war has been declared on this country by the Islamic terrorists, and we must protect the citizens of this country. The PATRIOT Act was an attempt in some respects to do this.

But before commenting on the specifics of the PATRIOT Act, I would be derelict if I did not mention that the majority party in this House and the Bush administration have really been derelict by not dealing more directly with the threats that we face. The biggest threats we face are sabotage, bombings in our mass transit systems, sabotage of our chemical farms, our nuclear plants that could kill thousands of people, yet we do not see funds to deal with this.

It is easy to be demagogic. The Bush administration does not want to throw money at the problem; they want to throw rhetoric at the problem. So we have the PATRIOT Act. I wish we had real measures to protect our mass transit systems, to protect our vulnerable infrastructure, to protect us against what happened in London again this morning.

The PATRIOT Act was an attempt to do several things, some of which were very necessary. Breaking down the wall between intelligence and police information was very necessary and was in the PATRIOT Act and is not before us today because most of the PATRIOT Act is not before us today. Most of the PATRIOT Act is permanentized. It is permanent law. But when we are expanding police powers and when we are expanding surveillance powers, the power of government to pry into the private affairs, the books, the records, the medical histories of individual citizens, sometimes it may be necessary for security to do so. But it endangers liberty, and that has to be balanced. We should always be nervous about expanding police and surveillance powers, and that is one of the greatest weaknesses of this bill.

We were only able to pass the PATRIOT Act 4 years ago because most, not all but most of the sections of the PATRIOT Act that expanded the powers of the police to pry into the privacy of ordinary Americans, to go into their home, into their papers, into their Internet records, their telephone records, their bank records, were sunsetted.

So what? What is the point of sunsetting? It means that every 4 years at least Congress has to look at that again, has to revisit it, has to have oversight and determine whether those powers are being abused. Mr. Sensenbrenner says they are not being abused. He knows. The Justice Department said so. They said, We are not abusing it. Glad to hear it. But every 4 years we should have to look into it and ask are these powers being abused? Should it be fine tuned? Should they be narrowed? Have we made the right balance between security and liberty?

This bill eliminates those sunsets, except for two, which it makes 10-year sunsets.

We have had 4 years since the PATRIOT Act was enacted. We did not do any oversight in this House until 6 months ago. Why? Because of the sunset. If it had not been for the sunsetting, we would not have had the oversight. We must have that oversight and we should have had all of these things sunsetted, continued another 4 years, another 4 years.

Secondly, Members have heard about section 215. The powers granted in section 215 of the PATRIOT Act, which is hardly modified by this bill, to look into anybody's library and medical records in secret and not tell anybody that they have done so, not tell the person whose records are pried into is a very disturbing invasion of liberty, and amendments to limit it were not made in order. Section 505 of the bill, which enables any FBI agent, any FBI field office director, to issue a national security letter to let them go and see their Internet records, their phone records, and so forth without even going to a judge and telling them it is relevant to a national security investigation is wrong, and it was declared unconstitutional by a federal court. The amendments to make this constitutional, to say that they have to at least allow for judicial review and to sunset the gag order were not made in order.

The CHAIRMAN. The gentleman's time has expired.

Mr. NADLER. This should be defeated for those reasons because it is not a proper balance between security and liberty.

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AMENDMENT NO. 5 OFFERED BY MR. FLAKE

Mr. FLAKE. 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, section 505 is one of the most, perhaps the most egregious provision of the PATRIOT Act, and it provides essentially, as was said before, that any Director of an FBI field office can issue a national security letter directing the production of financial, telephone, Internet and other records, period, without a court order, without any judicial approval, and there is no provision for going to courts to oppose that. The person whose privacy it is sought to invade never knows about it because it is directed to a third party; namely, the Internet service provider, the telephone company, or whoever. Furthermore, they are prevented by the gag order provision of section 505 from ever telling the person whose privacy is affected or anyone else about this.

The Federal Court in New York has ruled it unconstitutional for two reasons. One, you cannot issue this kind of what amounts to an intrusive search warrant without any judicial approval or provision for getting judicial approval. That is a violation of the fourth amendment. And, two, the gag order, the nondisclosure provision, was ruled as a prior restraint on speech, the first amendment.

This amendment, which I am pleased to cosponsor, is an attempt to solve these problems. It goes a considerable distance towards solving these problems. I do not think it solves all the problems. It does not make section 505 acceptable or even, in my opinion, constitutional, but it goes a good distance towards doing that.

It solves the first problem by saying that you can get a national security letter without going to court, but the recipient can go to court to quash it. That is a minimum standard that ought to be adhered to. This amendment does that, and I am very pleased it does that. It allows the recipient of a national security letter to ask that the gag order be set aside, and it sets limits on the gag order and says it has to be renewed after a certain time period and you have to apply to a court to extend it.

It fails, in my opinion, in that second provision to reach constitutional status by saying that the showing the government has to make to get an extension of the gag order, the affidavit by the government officer asking for the extension, shall be treated as conclusive unless the court finds that certification was made in bad faith. So that is not really up to the judgment of the judge, and I do not think that would satisfy the court on the first amendment. But it goes a long way, as I said, toward making this less egregious a violation of civil liberties and towards making it more constitutional. I do not think it goes far enough but it is a step forward.

It also does not deal with the fact that section 505 should be sunsetted. Because section 505, like some of the other sections we have talked about, is a great expansion of surveillance and police powers, and it may be a necessary one, although I do not agree with that, but even if it is necessary we should be nervous about the expansion of surveillance and police powers and we should revisit that and force Congress to revisit it through using a sunset every so often.

So this amendment goes a considerable distance in the right direction. It does not go far enough, in my opinion, to solve the problems with section 505, but it does go several steps in the right direction, and I commend the sponsor for introducing it, the main sponsor for drafting it, and I support the amendment.

Mr. Chairman, I reserve the balance of my time.

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