Science, State, Justice, Commerce, and Related Agencies Appropriations Act, 2007

SCIENCE, STATE, JUSTICE, COMMERCE, AND RELATED AGENCIES APPROPRIATIONS ACT, 2007

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Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.

First of all, I want to make it clear, I am just reading this revised amendment. This should increase the Jessica Gonzales program. It should put money into that by $5 million and reduce by $5 million the general administration salaries and expenses. I want to make clear that that is the intent of the amendment.

The Nadler-Capps amendment will increase the funding for the Jessica Gonzales Victim Assistance Program by $5 million. The offset is from the Department of Justice general administration account.

The Jessica Gonzales program places special victim assistants to act as liaisons between local law enforcement and victims of domestic violence in order to improve the enforcement of protection orders.

The current system has undermined the effectiveness of protective orders. Last year, the Supreme Court decided the case of Jessica Gonzales, who had obtained an order of protection against her violent husband. Despite Ms. Gonzales' numerous pleas to the police to arrest her husband for violating the order, even providing the police with information on his whereabouts, the police failed to do so. Mr. Gonzales then murdered their three children. When Ms. Gonzales sued the police for their failure to protect her and the children by enforcing the protective order, the Supreme Court ruled the police did not have the mandatory duty to enforce the order by making an arrest. The Jessica Gonzales Victim Assistance Program restores some of the effectiveness of restraining orders that the Supreme Court destroyed with this ruling.

This is the first opportunity to fund this program which was authorized last year in the Violence Against Women Reauthorization Act.

The Jessica Gonzales Victim Assistance Program will help enforce restraining orders and protect women who are victims of domestic violence. I, therefore, urge my colleagues to support the Nadler-Capps amendment to provide it with more adequate funding.

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

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Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, this amendment prohibits any funds from being used to issue National Security Letters to health insurance companies to obtain people's private and personal medical records.

Currently, under section 505, any FBI field office director can demand your personal medical records without a warrant or any judicial approval and the insurance company is legally required to give it to them and is legally prohibited or gagged from telling you or anyone else about the order.

Last year, almost 10,000 unreviewed National Security Letters were issued by the FBI without showing any connection between the records sought and any suspected foreign terrorist. Post PATRIOT Act reauthorization, I remain very concerned, because National Security Letters are still issued without court approval simply on the letter's assertion that the request is relevant to a national security investigation, without any showing of a connection to a suspected terrorist.

The right to challenge the gag order is not real, since the government's mere assertion that lifting the gag order would pose a threat to national security must be treated by the court as conclusive, with no evidence necessary as to the truth of that assertion.

Government officials already have access to so much of our personal information, such as credit reports, library user, and telephone communications. Do we want the government to have such unchecked access to personal and private information as revealed by our medical history: psychiatric profiles, lab studies, and diagnostic tests like CAT scans and MRIs?

If somehow your medical records are necessary in fact to a terrorist investigation, the government should be required to explain to a judge why they are needed, as is provided in section 215 of the PATRIOT Act, rather than simply allowing an FBI field agent to demand those records in secret.

The FBI already has far-reaching compulsory powers to obtain documents when it is investigating terrorism under both its criminal and intelligence authority. The FBI can obtain a search warrant if there is judicial finding of probable cause that a crime has or will be committed. The FBI can use Grand Jury subpoenas; and, in terrorism cases, the FBI has sweeping authority to obtain all the records, including medical records, under section 215 of the PATRIOT Act. But it has to go to a judge.

Given these existing search powers, there is no reason to authorize the FBI to issue unchecked National Security Letters demanding medical records without any showing of anything to a judge.

Mr. Chairman, if you have visited a doctor's office or a hospital in the last few months, you may have seen a notice telling you that your medical records may be turned over to the government for law enforcement or intelligence purposes. We can all agree that giving the FBI access to our most intimate private information is too great an intrusion on our privacy to leave unlimited and unsupervised.

There may very well be reasonable legitimate reasons for the FBI to need this information in terrorist investigations. Section 215 of the PATRIOT Act provides for them to get that information if they simply go to a judge and tell them why they need it. The NSLs, which this amendment would stop, or would say you can't spend money on, skips the necessity of even going to a judge in private, in secret, and saying why they need that.

Let them use section 215. We had almost a majority on this floor to eliminate section 215, but at least that requires a showing to a judge. The National Security Letters allows any FBI field office director to get these most private records without any showing to a judge. That is wrong, and I urge my colleagues to vote for this amendment.

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

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Mr. NADLER. Mr. Chairman, I yield myself the balance of my time.

Mr. Chairman, I respect everything that the gentleman from Virginia said. 9/11 happened in my district. Terrorism is terrible. We are waging a war against it, and we have to wage that war against it, and we have to protect ourselves. The question is intelligent protection.

The FBI should not have the right to get our medical records without going to a court. That is what this question is about. Should they have the right to get these records simply on an assertion or a letter that nobody even has to look at, that it is simply relevant to an investigation, without going to court?

Yes, certain protections were put into the bill. Those protections are insubstantial. For example, you can challenge the gag order. Yeah, but if the government says that lifting the gag order would harm national security, that assertion must be taken as dispositive. The court can't say, really? The court can't say, what evidence?

For all practical purposes, they have an absolute right to these records without showing them to a court. I am not saying they should not get the records. My amendment doesn't say they shouldn't get the records. What it says is a general principle, one that we should always adhere to, if they think they need the records for a terrorist investigation, go to a court, go to a FISA court, go to a secret court. Use section 215 of the PATRIOT Act.

But we shouldn't allow the FBI to have access to private records without some showing in court of necessity of probable cause or something. That is why this amendment should pass.

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Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, this amendment can be very simply summed up simply by reading the one sentence of it. None of the funds made available in this Act may be used for the purpose of enforcing the final judgment of the Federal District Court for the Southern District of Indiana issued in Hinrichs v. Bosma.

I listened to the distinguished gentleman from Indiana as he told us why he disagrees with this, the judgment of the court, of the Federal court of Indiana and why he thinks the court is wrong. He is entitled to his opinion. But let the litigant appeal the decision. That is why we have courts.

The Soviet Union under Stalin in 1936 adopted a constitution. That constitution had a bill of rights, freedom of speech, freedom of association, freedom of the press, freedom of religious and anti-religious propaganda, as they quaintly put it. The problem, of course, was that if you tried to assert the rights they shot you instead of letting you go to court.

No rights are worth anything. There is a maxim in the law, there is no right without a remedy. No right is worth anything if you can't enforce that right. The way we enforce rights in this country is in courts. We tried it a different way once. We had a civil war.

Either Mao is right, that power comes out of the barrel of a gun, or we do it the way we do in this country. We obey court orders.

When a court says something unpopular, you shall not have Jim Crow segregated schools in the South, we obey the law. The President sends in the National Guard in Little Rock in 1957 if he has to. No matter how unpopular the court's decision is.

And here we have an amendment that says, because we disagree with a given decision of a local court, a Federal court in Indiana, no funds will be expended to enforce that decision. That way lies tyranny, Mr. Chairman.

If the gentleman from Indiana doesn't like the opinion, it should be appealed. And if he still doesn't like it, if he doesn't like the final judgments, let him bring an amendment to the Federal Constitution to this body. We can amend the Constitution.

But to say that when a court has decided on a matter of rights, the court has decided that something or other, I am not sure what this case was about, but something or other, some action that someone was taking violated some plaintiff's civil rights, that we should say that no funds will be expended to obey the court order to protect the civil rights of whoever the plaintiff was that the court found that somebody was violating; that some agency of government was violating someone's rights. The Court said that that is the case and, therefore, they should stop it; and we should say, no, no, no? No funds should be used to enforce the order of the court because the victim of the discrimination or the violation of civil rights is unpopular, unpopular with our constituents or unpopular on this floor?

The whole point of religious liberty is that it is not subject to a popularity contest. Minority religions have the right to be protected. Your liberty is protected because you are an American, because we value liberty, not because you can win a vote on the floor of the House or the Virginia Legislature or the Indiana Legislature.

It is absolutely destructive of the structure of our society, the structure of our government and of our guarantees of liberty to say, with regard to any court order, I am not going to defend this court order because I don't know much about it. But to say we will not allow the expenditure of the funds to enforce a court order, that is not our judgment.

If you want to destroy the Constitution, destroy the Constitution, destroy the Bill of Rights, vote for this bill.

I reserve the balance of my time.

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Mr. NADLER. I will take the balance of my time.

Mr. Chairman, I will simply say again, it is extremely subversive of liberty, of civil rights, of civil liberties to vote for this bill. I cannot recall a worse bill. To say that we won't enforce a court order because we don't agree with the court, change the judges. You have got the President. Amend the Constitution if you think it is that bad. But don't say that we are going to usurp the function of the courts and let somebody who went to court, exercised his American right to go to court, won in court, and we are going to shaft him and say your rights are violated. The court found your rights are violated, but we, because you are unpopular, we won't let the court enforce your rights. We will take the money away. For shame.

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Mr. NADLER. Mr. Chairman, I appreciate the gentleman yielding.

I would simply like to point out that this amendment differs fundamentally from the Sodrel amendment that we heard a few minutes ago. The Sodrel amendment is subject to the disparaging comments that the gentleman from Virginia just made, because the Sodrel amendment does say no funds herein appropriated shall be used to enforce the court decision in a certain case and says we are not going to enforce a court decision.

The Hinchey amendment doesn't do that. Nor does the Hinchey amendment, contrary to what we heard from the distinguished chairman, overturn a Supreme Court decision. The Supreme Court decision in this case said you may do something. You may execute a search warrant without knocking. What this amendment says is, because we may doesn't mean we should.

So what the gentleman's amendment is saying is, despite the fact that the Supreme Court gave us permission to do this, we will deny funding to do this because we don't think it is right. So the gentleman's amendment is not overturning an Supreme Court decision. It is saying, thank you for the permission; we choose not to exercise the permission you gave us.

It is very different from the Sodrel amendment, which says do not enforce the court order. Do not spend any money enforcing the court order. That is subversive of the Constitution. That is subversive of a liberty.

Mr. Hinchey's amendment, whether you agree with it or not, does not subvert the court order, does not subvert what the court said, and simply says, what you gave us permission to do, we choose not to do.

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