Departments of Commerce, Justice, and State, The Judiciary, and Related Agencies Appropriations Act, 2005

DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED AGENCIES APPROPRIATIONS ACT, 2005 -- (House of Representatives - July 08, 2004)

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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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.

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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.

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 ½ 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 ½ 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.

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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?