Conference Report on H.R. 3199, USA Patriot Improvement and Reauthorization Act of 2005

CONFERENCE REPORT ON H.R. 3199, USA PATRIOT IMPROVEMENT AND REAUTHORIZATION ACT OF 2005 -- (House of Representatives - December 14, 2005)

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Mr. NADLER. Madam Speaker, we are engaged in a serious war with terrorism. Unfortunately, we are going after the wrong targets. We are not protecting ourselves, but we are endangering our liberties.

We are not doing anything or anything adequate about collecting the loose nuclear materials all over the former Soviet Union before they are smuggled to al Qaeda to make atomic bombs to attack us with. That costs money.

We are searching 2 percent of the 6 million shipping containers that come into our country's ports every year, any one of which may contain a weapon of mass destruction; but to search them would cost money.

We are not doing much about what the 9/11 Commission said was one of the most important things we should do, providing for intercommunicability between the first responders so police can talk to the fire and military. We are not doing that.

What are we doing? We are violating the civil liberties of our people and making them think that we are protecting ourselves.

Madam Speaker, this country has a great heritage of liberty. It also has an unfortunate history of violating that liberty whenever we get into a war, from the Alien and Sedition Act of 1798 to the Espionage Act of 1971, the Palmer Raids of 1919, the Japanese American Internment Act of World War II, the FBI's egregious COINTELPRO program against opponents of the Vietnam War. And now in this war, this administration has resorted to torture, to indefinite detention without trial, to evasions of the great writ of habeas corpus, to going back in some respects to before Magna Carta.

What does this bill do? This bill continues in that tradition. It does some okay things. It continues breaking down the so-called wall between intelligence and police work. That makes sense. But it also invades our liberties in ways that are very unnecessary. Let me focus on two of them.

Section 215, the so-called libraries provision, allows the government to get orders from a FISA court to search any records of any business of a library regarding a third party who never knows about the search. It does not require a showing of a particularized suspicion of the target as the fourth amendment would seem to require. It simply says that the government has to come up with a statement of fact showing there are reasonable grounds to believe the tangible things sought are relevant to an authorized investigation. Well, that is hardly restrictive at all. Relevant, almost anything can be relevant.

Moreover, it says that the government's statements that the information sought is necessary to protect against international terrorism or clandestine intelligence activities are presumptively relevant if the person they pertain to may be an individual in contact with a subject or agent of a foreign power. Presumptively relevant, that means they do not have to prove it. They do not have to show probable cause. This destroys the fourth amendment requirement for search and seizures.

Then you have the gag order. They cannot tell anybody about it. The Internet service provider or the library that is giving up all the information about what you read or who you talk to cannot tell you. You cannot move in court to quash it.

Section 505, national security letters which have been held unconstitutional by two courts so far do not even require a FISA court. It is an administrative proceeding. It is not even a proceeding; the FBI simply says they want it, and they can get it. This is like the writ of assistance the British granted in 1761 which this is very similar to. That started the American Revolution. But after the FBI gets the information, you can protest the gag order. You can say I want to be able to tell somebody about it, but you can only say that if you can show that revealing that information is not harmful to the national security or diplomatic relations, but the government's statement that it is conclusive, so the court is a cipher. The court cannot make any judgments. There is no evidence. The government's statement is conclusive.

This does not protect liberty; this destroys liberty. We ought to have real protections for our liberty. We ought to have put some procedural safeguards on these powers such as our entire tradition demands. To pass this bill with no sunset of section 505, with no procedural safeguards on these very intrusive provisions is to disregard our entire history of ordered liberty. I very much urge defeat of this bill so we can do it properly after further consideration.

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Mr. NADLER. Madam Speaker, I want to make two points: One, the bad parts about section 215 and section 505 are not that, under certain circumstances, the FBI or other investigative agencies can get information from libraries. No one is proposing, as Mr. Sensenbrenner said, to say that libraries are totally sacrosanct.

The bad part is that the FBI can get all this private personal information without any proper or adequate judicial review and then can tell them, shut up, do not tell the victim about it, and that gag order also operates without any real judicial review. That is the real issue.

Secondly, the gentleman from Wisconsin is attempting to do something, I think, improper, and that is, he tells us you cannot change the PATRIOT Act. There are good things in this bill, things we need, which is true, but you have got to take it or leave it, because your 3-month extension I will not allow to go through. We will blackmail this House. If you do not pass the bill as is today, if it expires, there will be blood on your hands, because he and his side of the aisle will not allow a 3-month extension. Well, if there is fault, if there is real danger by not extending the PATRIOT Act, it is on that side of the aisle by refusing a 3-month extension so that we can get it right.

This country should not be subjected to that kind of blackmail. The Senate has real questions. Many liberals, many conservatives, have real questions about this bill. It should be worked out, and if it takes an additional 3 months, let it be. But we, this House, should not be told, take it or leave it, because if you do not take it the way it is, we will not permit a 3-month extension; there will be dangers to the Republic. Without a 3-month extension, there will be blood on your hands.

That is not the way to legislate. That is not proper procedure. That is not respectful of the Constitution. It is not respectful of the people of this country. It is not respectful of the Members of this House.

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