" HOUSE OF REPRESENTATIVES ! 109TH CONGRESS

1st Session 

REPT. 109–174

Part 1

USA PATRIOT AND TERRORISM PREVENTION

REAUTHORIZATION ACT OF 2005

R E P O R T

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

TO ACCOMPANY

H.R. 3199

together with

DISSENTING VIEWS

JULY 18, 2005.—Ordered to be printed 


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USA PATRIOT AND TERRORISM PREVENTION REAUTHORIZATION ACT OF 2005

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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1

22–475

" HOUSE OF REPRESENTATIVES ! 109TH CONGRESS

1st Session 

REPT. 109–174

2005

Part 1

USA PATRIOT AND TERRORISM PREVENTION

REAUTHORIZATION ACT OF 2005

R E P O R T

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

TO ACCOMPANY

H.R. 3199

together with

DISSENTING VIEWS

JULY 18, 2005.—Ordered to be printed 


seneagle
109TH CONGRESS REPT. 109–174 " HOUSE OF REPRESENTATIVES ! 1st Session Part 1

USA PATRIOT AND TERRORISM PREVENTION 

REAUTHORIZATION ACT OF 2005

JULY 18, 2005.—Ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 3199] 

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 3199) to extend and modify authorities needed to combat terrorism, and for other purposes, having considered the same, report 

favorably thereon with an amendment and recommend that the bill 

as amended do pass.

CONTENTS 

Page 

The Amendment ...................................................................................................... 2

Purpose and Summary ............................................................................................ 5

Background and Need for the Legislation ............................................................. 6

Hearings ................................................................................................................... 47

Committee Consideration ........................................................................................ 47

Vote of the Committee ............................................................................................. 47

Committee Oversight Findings ............................................................................... 71

New Budget Authority and Tax Expenditures ...................................................... 72

Congressional Budget Office Cost Estimate .......................................................... 72

Performance Goals and Objectives ......................................................................... 73

Constitutional Authority Statement ...................................................................... 73

Section-by-Section Analysis and Discussion .......................................................... 73

Changes in Existing Law Made by the Bill, as Reported ..................................... 81

Markup Transcript .................................................................................................. 95

Dissenting Views ..................................................................................................... 444

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THE AMENDMENT

The amendment is as follows: 

Strike all after the enacting clause and insert the following:

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005’’. 

SEC. 2. REFERENCES TO USA PATRIOT ACT. 

A reference in this Act to the USA PATRIOT ACT shall be deemed a reference 

to the Uniting and Strengthening America by Providing Appropriate Tools Required 

to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001. 

SEC. 3. USA PATRIOT ACT SUNSET PROVISIONS. 

(a) IN GENERAL.—Section 224 of the USA PATRIOT ACT is repealed. 

(b) SECTIONS 206 AND 215 SUNSET.—Effective December 31, 2015, the Foreign Intelligence Surveillance Act of 1978 is amended so that sections 501, 502, and 

105(c)(2) read as they read on October 25, 2001. 

SEC. 4. REPEAL OF SUNSET PROVISION RELATING TO INDIVIDUAL TERRORISTS AS AGENTS 

OF FOREIGN POWERS. 

Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004 

(Public Law 108458; 118 Stat. 3742) is amended by—

(1) striking subsection (b); and 

(2) striking ‘‘(a)’’ and all that follows through ‘‘Section’’ and inserting ‘‘Section’’. 

SEC. 5. REPEAL OF SUNSET PROVISION RELATING TO SECTION 2332B AND THE MATERIAL 

SUPPORT SECTIONS OF TITLE 18, UNITED STATES CODE. 

Section 6603 of the Intelligence Reform and Terrorism Prevention Act of 2004 

(Public Law 108458; 118 Stat. 3762) is amended by striking subsection (g). 

SEC. 6. SHARING OF ELECTRONIC, WIRE, AND ORAL INTERCEPTION INFORMATION UNDER 

SECTION 203(B) OF THE USA PATRIOT ACT. 

Section 2517(6) of title 18, United States Code, is amended by adding at the end 

the following: ‘‘Within a reasonable time after a disclosure of the contents of a communication under this subsection, an attorney for the Government shall file, under 

seal, a notice with a judge whose order authorized or approved the interception of 

that communication, stating the fact that such contents were disclosed and the departments, agencies, or entities to which the disclosure was made.’’. 

SEC. 7. DURATION OF FISA SURVEILLANCE OF NON-UNITED STATES PERSONS UNDER SECTION 207 OF THE USA PATRIOT ACT. 

(a) ELECTRONIC SURVEILLANCE.—Section 105(e) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(e)) is amended—

(1) in paragraph (1)(B), by striking ‘‘, as defined in section 101(b)(1)(A)’’ and 

inserting ‘‘who is not a United States person’’; and 

(2) in subsection (2)(B), by striking ‘‘as defined in section 101(b)(1)(A)’’ and inserting ‘‘who is not a United States person’’. 

(b) PHYSICAL SEARCH.—Section 304(d) of such Act (50 U.S.C. 1824(d)) is amended—

(1) in paragraph (1)(B), by striking ‘‘as defined in section 101(b)(1)(A)’’ and inserting ‘‘who is not a United States person’’; and 

(2) in paragraph (2), by striking ‘‘as defined in section 101(b)(1)(A)’’ and inserting ‘‘who is not a United States person’’. 

(c) PEN REGISTERS, TRAP AND TRACE DEVICES.—Section 402(e) of such Act (50 

U.S.C. 1842(e)) is amended—

(1) by striking ‘‘(e) An’’ and inserting ‘‘(e)(1) Except as provided in paragraph 

(2), an’’; and 

(2) by adding at the end the following new paragraph: 

‘‘(2) In the case of an application under subsection (c) where the applicant has certified that the information likely to be obtained is foreign intelligence information 

not concerning a United States person, an order, or an extension of an order, under 

this section may be for a period not to exceed one year.’’. 

SEC. 8. ACCESS TO CERTAIN BUSINESS RECORDS UNDER SECTION 215 OF THE USA PATRIOT 

ACT. 

(a) ESTABLISHMENT OF RELEVANCE STANDARD.—Subsection (b)(2) of section 501 of 

the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is amended by 

striking ‘‘to obtain’’ and all that follows and inserting ‘‘and that the information likely to be obtained from the tangible things is reasonably expected to be (A) foreign 

3

intelligence information not concerning a United States person, or (B) relevant to 

an ongoing investigation to protect against international terrorism or clandestine intelligence activities.’’. 

(b) CLARIFICATION OF JUDICIAL DISCRETION.—Subsection (c)(1) of such section is 

amended to read as follows: 

‘‘(c)(1) Upon an application made pursuant to this section, if the judge finds that 

the application meets the requirements of subsections (a) and (b), the judge shall 

enter an ex parte order as requested, or as modified, approving the release of 

records.’’. 

(c) AUTHORITY TO DISCLOSE TO ATTORNEY.—Subsection (d) of such section is 

amended to read as follows: 

‘‘(d)(1) No person shall disclose to any person (other than a qualified person) that 

the United States has sought or obtained tangible things under this section. 

‘‘(2) An order under this section shall notify the person to whom the order is directed of the nondisclosure requirement under paragraph (1). 

‘‘(3) Any person to whom an order is directed under this section who discloses that 

the United States has sought to obtain tangible things under this section to a qualified person with respect to the order shall inform such qualified person of the nondisclosure requirement under paragraph (1) and that such qualified person is also 

subject to such nondisclosure requirement. 

‘‘(4) A qualified person shall be subject to any nondisclosure requirement applicable to a person to whom an order is directed under this section in the same manner 

as such person. 

‘‘(5) In this subsection, the term ‘qualified person’ means—

‘‘(A) any person necessary to produce the tangible things pursuant to an order 

under this section; or 

‘‘(B) an attorney to obtain legal advice with respect to an order under this section.’’. 

(d) JUDICIAL REVIEW.—

(1) PETITION REVIEW PANEL.—Section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is amended by adding at the end the following new subsection: 

‘‘(e)(1) Three judges designated under subsection (a) who reside within 20 miles 

of the District of Columbia, or if all of such judges are unavailable, other judges of 

the court established under subsection (a) as may be designated by the Presiding 

Judge of such court (who is designated by the Chief Justice of the United States 

from among the judges of the court), shall comprise a petition review panel which 

shall have jurisdiction to review petitions filed pursuant to section 501(f)(1). 

‘‘(2) Not later than 60 days after the date of the enactment of the USA PATRIOT 

and Terrorism Prevention Reauthorization Act of 2005, the court established under 

subsection (a) shall develop and issue procedures for the review of petitions filed 

pursuant to section 501(f)(1) by the panel established under paragraph (1). Such 

procedures shall provide that review of a petition shall be conducted ex parte and 

in camera and shall also provide for the designation of an Acting Presiding Judge.’’. 

(2) PROCEEDINGS.—Section 501 of the Foreign Intelligence Surveillance Act of 

1978 (50 U.S.C. 1861) is further amended by adding at the end the following 

new subsection: 

‘‘(f)(1) A person receiving an order to produce any tangible thing under this section may challenge the legality of that order by filing a petition in the panel established by section 103(e)(1). The Presiding Judge shall conduct an initial review of 

the petition. If the Presiding Judge determines that the petition is frivolous, the 

Presiding Judge shall immediately deny the petition and promptly provide a written 

statement of the reasons for the determination for the record. If the Presiding Judge 

determines that the petition is not frivolous, the Presiding Judge shall immediately 

assign the petition to one of the judges serving on such panel. The assigned judge 

shall promptly consider the petition in accordance with procedures developed and 

issued pursuant to section 103(e)(2). The judge considering the petition may modify 

or set aside the order only if the judge finds that the order does not meet the requirements of this section or is otherwise unlawful. If the judge does not modify or 

set aside the order, the judge shall immediately affirm the order and order the recipient to comply therewith. A petition for review of a decision to affirm, modify, 

or set aside an order by the United States or any person receiving such order shall 

be to the court of review established under section 103(b), which shall have jurisdiction to consider such petitions. The court of review shall immediately provide for 

the record a written statement of the reasons for its decision and, on petition of the 

United States or any person receiving such order for writ of certiorari, the record 

shall be transmitted under seal to the Supreme Court, which shall have jurisdiction 

to review such decision. 

4

‘‘(2) Judicial proceedings under this subsection shall be concluded as expeditiously 

as possible. The judge considering a petition filed under this subsection shall provide for the record a written statement of the reasons for the decision. The record 

of proceedings, including petitions filed, orders granted, and statements of reasons 

for decision, shall be maintained under security measures established by the Chief 

Justice of the United States in consultation with the Attorney General and the Director of National Intelligence. 

‘‘(3) All petitions under this subsection shall be filed under seal, and the court, 

upon the government’s request, shall review any government submission, which 

may include classified information, as well as the government’s application and related materials, ex parte and in camera.’’. 

SEC. 9. REPORT ON EMERGENCY DISCLOSURES UNDER SECTION 212 OF THE USA PATRIOT 

ACT. 

Section 2702 of title 18, United States Code, is amended by adding at the end the 

following: 

‘‘(d) REPORT.—On an annual basis, the Attorney General shall submit to the Committees on the Judiciary of the House and the Senate a report containing—

‘‘(1) the number of accounts from which the Department of Justice has received voluntary disclosures under subsection (b)(8); and 

‘‘(2) a summary of the basis for disclosure in those instances where—

‘‘(A) voluntary disclosure under subsection (b)(8) was made to the Department of Justice; and 

‘‘(B) the investigation pertaining to those disclosures was closed without 

the filing of criminal charges.’’. 

SEC. 10. SPECIFICITY AND NOTIFICATION FOR ROVING SURVEILLANCE AUTHORITY UNDER 

SECTION 206 OF THE USA PATRIOT ACT. 

(a) INCLUSION OF SPECIFIC FACTS IN APPLICATION.—Section 105(c)(2)(B) of the 

Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)) is amended 

by striking ‘‘where the Court finds’’ and inserting ‘‘where the Court finds, based 

upon specific facts provided in the application,’’. 

(b) NOTIFICATION OF SURVEILLANCE OF NEW FACILITY OR PLACE.—Section 

105(c)(2) of such Act is amended—

(1) in subparagraph (C), by striking ‘‘and’’ at the end; 

(2) in subparagraph (D), by striking the period at the end and inserting ‘‘; 

and’’; and 

(3) by adding at the end the following new subparagraph: 

‘‘(E) that, in the case of electronic surveillance directed at a facility or 

place that is not known at the time the order is issued, the applicant shall 

notify a judge having jurisdiction under section 103 within 10 days after 

electronic surveillance begins to be directed at a new facility or place, and 

such notice shall contain a statement of the facts and circumstances relied 

upon by the applicant to justify the belief that the facility or place at which 

the electronic surveillance is or was directed is being used, or is about to 

be used, by the target of electronic surveillance.’’. 

SEC. 11. PROHIBITION ON PLANNING TERRORIST ATTACKS ON MASS TRANSPORTATION. 

Section 1993(a) of title 18, United States Code, is amended—

(1) by striking ‘‘or’’ at the end of paragraph (7); 

(2) by redesignating paragraph (8) as paragraph (9); and 

(3) by inserting after paragraph (7) the following: 

‘‘(8) surveils, photographs, videotapes, diagrams, or otherwise collects information with the intent to plan or assist in planning any of the acts described 

in the paragraphs (1) through (7); or’’. 

SEC. 12. ENHANCED REVIEW OF DETENTIONS. 

Section 1001 of the USA PATRIOT ACT is amended by—

(1) inserting ‘‘(A)’’ after ‘‘(1)’’; and 

(2) inserting after ‘‘Department of Justice’’ the following: ‘‘, and (B) review detentions of persons under section 3144 of title 18, United States Code, including 

their length, conditions of access to counsel, frequency of access to counsel, offense at issue, and frequency of appearance before a grand jury’’. 

SEC. 13. FORFEITURE. 

Section 981(a)(1)(B)(i) of title 18, United States Code, is amended by inserting 

‘‘trafficking in nuclear, chemical, biological, or radiological weapons technology or 

material, or’’ after ‘‘involves’’. 

SEC. 14. ADDING OFFENSES TO THE DEFINITION OF FEDERAL CRIME OF TERRORISM. 

Section 2332b(g)(5)(B)(i) of title 18, United States Code, is amended—

5

(1) by inserting ‘‘, 2339D (relating to military-type training from a foreign terrorist organization)’’ before ‘‘, or 2340A’’ ; and 

(2) by inserting ‘‘832 (relating to nuclear and weapons of mass destruction 

threats),’’ after ‘‘831 (relating to nuclear materials),’’. 

SEC. 15. AMENDMENTS TO SECTION 2516(1) OF TITLE 18, UNITED STATES CODE. 

(a) PARAGRAPH (c) AMENDMENT.—Section 2516(1)(c) of title 18, United States 

Code, is amended—

(1) by inserting ‘‘section 37 (relating to violence at international airports), section 175b (relating to biological agents or toxins)’’ after ‘‘the following sections 

of this title:’’; 

(2) by inserting ‘‘section 832 (relating to nuclear and weapons of mass destruction threats), section 842 (relating to explosive materials), section 930 (relating to possession of weapons in Federal facilities),’’ after ‘‘section 751 (relating to escape),’’; 

(3) by inserting ‘‘section 1114 (relating to officers and employees of the United 

States), section 1116 (relating to protection of foreign officials), sections 

13611363 (relating to damage to government buildings and communications), 

section 1366 (relating to destruction of an energy facility),’’ after ‘‘section 1014 

(relating to loans and credit applications generally; renewals and discounts),’’; 

(4) by inserting ‘‘section 1993 (relating to terrorist attacks against mass transportation), sections 2155 and 2156 (relating to national-defense utilities), sections 2280 and 2281 (relating to violence against maritime navigation),’’ after 

‘‘section 1344 (relating to bank fraud),’’; and 

(5) by inserting ‘‘section 2340A (relating to torture),’’ after ‘‘section 2321 (relating to trafficking in certain motor vehicles or motor vehicle parts),’’. 

(b) PARAGRAPH (p) AMENDMENT.—Section 2516(1)(p) is amended by inserting ‘‘, 

section 1028A (relating to aggravated identity theft)’’ after ‘‘other documents’’. 

(c) PARAGRAPH (q) AMENDMENT.—Section 2516(1)(q) of title 18, United States Code 

is amended—

(1) by inserting ‘‘2339,’’ after ‘‘2332h,’’; and 

(2) by striking ‘‘or 2339C’’ and inserting ‘‘2339C, or 2339D’’ . 

SEC. 16. DEFINITION OF PERIOD OF REASONABLE DELAY UNDER SECTION 213 OF THE USA 

PATRIOT ACT. 

Section 3103a(b)(3) of title 18, United States Code, is amended—

(1) by striking ‘‘of its’’ and inserting ‘‘, which shall not be more than 180 days, 

after its’’; and 

(2) by inserting ‘‘for additional periods of not more than 90 days each’’ after 

‘‘may thereafter be extended’’.

PURPOSE AND SUMMARY

H.R. 3199, introduced by Chairman F. James Sensenbrenner, Jr., 

on July 11, 2005, would reauthorize the expiring provisions in the 

USA PATRIOT Act and two provisions in the Intelligence Reform 

and Terrorism Prevention Act of 2004 that would expire within the 

next two years, as amended. The bill extended the sunset for 10 

years on two of the provisions that had amended the Foreign Intelligence Surveillance Act relating to Foreign Intelligence Surveillance Court orders for roving wiretaps and for business records. 

H.R. 3199 is based on four years of extensive oversight consisting 

of hearing testimony, Department of Justice Inspector General reports, briefings, and oversight correspondence. Since April of this 

year alone, this Committee has heard testimony from 35 witnesses 

during 11 hearings on the USA PATRIOT Act. That testimony and 

related oversight has demonstrated that the USA PATRIOT Act 

has been an effective tool against both terrorists and criminals intent on harming innocent people, and therefore deserves to be reauthorized with some modifications. H.R. 3199 accomplishes this 

objective by reauthorizing provisions set to sunset and making 

some improvements. The bill modifies the following provisions of 

USA PATRIOT Act: (1) Section 203(b) to allow for notification to 

a court that criminal wiretap information has been shared; (2) secVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00009 Fmt 6659 Sfmt 6602 E:\HR\OC\HR174P1.000 HR174P1
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1Pub. L. No. 107–296. 

tion 206 to clarify when and where law enforcement is authorized 

to use a multi-point or roving wiretap; (3) section 207 to further extend the maximum duration of orders for electronic surveillance 

and physical searches targeted against all agents of foreign powers 

who are not U.S. persons; (4) section 212 to require an annual report to the House and Senate Judiciary Committees by the Attorney General, which sets forth the number of accounts subject to a 

section 212 disclosure and a summary of the basis for disclosure in 

certain circumstances; (5) section 215 to clarify that the information likely to be obtained is reasonably expected to: be (A) foreign 

intelligence information NOT concerning a U.S. person or (B) relevant to an ongoing investigation to protect against international 

terrorism or clandestine intelligence activities; (6) section 215 to 

clarify that a FISA 215 order may be challenged; (7) section 215 

to clarify that a recipient of a 215 order may consult with a lawyer 

and the appropriate people necessary to challenge and comply with 

the order; (8) section 215 to clarify that the order will only be 

issued ‘‘if the judge finds that the requirements have been met;’’ (9) 

section 215 to set up a judicial review process that authorizes the 

judge to set aside or affirm a 215 order that has been challenged. 

The bill makes permanent sections 201, 202, 203 (b) and (d), 204, 

207, 209, 212, 214, 217, 218, 220, 223, and 225, which were scheduled to sunset on December 31, 2005, and extends until December 

31, 2015 the sunset of sections 206 and 215. In addition, the bill 

makes permanent section 6001 of the Intelligence Reform and Terrorism Prevention Act (IRTPA), which provides an additional definition for ‘‘Agent of a Foreign Power,’’ to cover the ‘‘lone wolf’’ 

under 50 U.S.C. 1801(b)(1). The legislation repeals section 6603(g) 

of the IRTPA, which would sunset section 6603, the ‘‘Additions to 

Offense of Providing Material Support to Terrorism’’. Finally, H.R. 

3199 would enhance security of mass transportation; Department 

of Justice Inspector General review, and Judicial and Congressional oversight. 

BACKGROUND AND NEED FOR THE LEGISLATION

The terrorist attacks on the World Trade Center and the Pentagon took more than 3,000 lives, caused billions in economic 

losses, triggered U.S. military intervention in Afghanistan to topple 

the Taliban regime, and led to the passage of the USA PATRIOT 

Act and other anti-terrorism bills. Another example of anti-terror 

legislation that enhanced law enforcement authorities and improved information sharing was the ‘‘Homeland Security Act of 

2002,1’’ which created the Department of Homeland Security. This 

legislation incorporates H.R. 4598, the ‘‘Homeland Security Information Sharing Act’’ to further improve information sharing with 

Federal and state and local officials. The Homeland Security Act 

also updated law enforcement authorities by including: H.R. 3482 

(107th), the ‘‘Cyber Security Enhancement Act of 2002,’’ which increased penalties for cybercrimes and cyberterrorism, and H.R. 

4864 (107th), the ‘‘Anti-Terrorism Explosives Act,’’ which strengthened penalties for the unlawful possession of explosive materials. 

7

2 Air Transportation Safety and System Stabilization Act, Pub. L. No. 107–42, 115 Stat. 230 

(2001). 3 Barbara Jordan Immigration Reform and Accountability Act, 107th Cong. (2002). 

4 Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L. No. 107–173, 116 

Stat. 543 (2002). 5The 9/11 Commission Report: Final Report of the National Commission on Terrorists Attacks 

Upon the United States p. 394 (2004). 6Pub. L. No. 108–458, 118 Stat. 3638 (2004). 

7 Roll no. 27. 

To respond to terrorist threats, Congress also has passed legislation to tighten security at America’s airports,2 to fundamentally reform the Immigration and Naturalization Service,3 and to enhance 

border security.4 Congress also created the National Commission 

on Terrorist Attacks Upon the United States (the ‘‘9/11 Commission’’), an independent, bipartisan commission created in 2002 to 

examine the circumstances surrounding the September 11, 2001 

terrorist attacks, including preparedness for and the immediate response to the attacks. In July 2004, the Commission issued ‘‘The 

9/11 Commission Report: Final Report of the National Commission 

on Terrorists Attacks Upon the United States.’’ The 9/11 Commission noted that most of the USA PATRIOT Act provisions are ‘‘relatively noncontroversial, updating America’s surveillance laws to 

reflect technological developments in a digital age. Some executive 

actions that have been criticized are unrelated to the Patriot Act. 

The provisions in the Act that facilitate the sharing of information 

among intelligence agencies and between law enforcement and intelligence appear, on balance, to be beneficial. Because of concerns 

regarding the shifting balance of power to the government, we 

think that a full and informed debate on the Patriot Act would be 

healthy.’’ 5

In addition to these legislative initiatives, the House Committee 

on the Judiciary has conducted nearly a 100 hearings to better protect the American people against terrorist attacks since September 

11, 2001. Many of those hearings examined legislative initiatives 

that were adopted as part of the ‘‘Intelligence Reform and Terrorism Prevention Act of 2004,’’ 6 which responded to the 9/11 Commission Report and was signed into law on December 17, 2004, and 

H.R. 418, the ‘‘Real ID Act of 2005,’’ which passed the House by 

a roll call vote of 229 to 198.7

1. Congressional Response—the USA PATRIOT Act 

To better equip Federal law enforcement and the intelligence 

community with the resources necessary to confront these modern 

threats, Chairman Sensenbrenner introduced H.R. 2975, to ‘‘Provide Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,’’ on October 2, 2001. H.R. 2975 was reported 

unanimously by the Judiciary Committee. The House and Senate 

combined their versions of the legislation into H.R. 3162, the ‘‘Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,’’ (USA PATRIOT Act). This legislation incorporated provisions of H.R. 3004 

(107th), the ‘‘Financial Anti-Terrorism Act,’’ which increased penalties for money laundering and financing terrorist organizations; 

and H.R. 3160 (107th), the ‘‘Bioterrorism Prevention Act of 2001,’’ 

which provided law enforcement personnel greater resources to assess and prevent biological attacks on American soil. The USA PAVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 E:\HR\OC\HR174P1.000 HR174P1
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8Pub. L. No. 107–56, 115 Stat 272 (codified as amended in scattered sections of 18 U.S.C. 

(2003)). 9http://www.lifeandliberty.gov/, citing the (Cong. Rec., 10/25/01). 

10http://www.lifeandliberty.gov/. 

TRIOT Act was signed into law by President Bush on October 26, 

2001.8

The USA PATRIOT Act modernized investigative tools to effectively fight the advanced technologies used by terrorists and criminals. The USA PATRIOT Act also greatly improved information 

sharing between law enforcement and the intelligence community. 

A. Investigative Authorities 

The USA PATRIOT Act was designed to assist in the prevention 

of future terrorist activities as well as in the prevention of a broad 

range of criminal activity that often furthers those activities. The 

law increased penalties for Federal terrorism offenses and provided 

for extended post-incarceration supervised release for persons convicted of such offenses. The bill strengthened Federal money laundering laws, added new terrorism offenses, updated the bioterrorism laws, funded first responders, and modified immigration law 

to increase the Federal Government’s ability to prevent foreign terrorists from entering the United States. The Act also streamlined 

and updated the investigative authorities for law enforcement and 

the intelligence community. 

‘‘Many of the tools the Act provides to fight terrorism have been 

used for decades to fight organized crime and drug dealers, and 

have been reviewed and approved by the courts. As Sen. Joe Biden 

(D–DE) explained during the floor debate about the Act, ‘the FBI 

could get a wiretap to investigate the mafia, but they could not get 

one to investigate terrorists. To put it bluntly, that was crazy! 

What’s good for the mob should be good for terrorists.’ ’’ 9

Another example of an authority that was codified in the Act is 

the long-standing discretionary authority of Federal judges to grant 

law enforcement the authority to use ‘‘roving wiretaps’’ to investigate ordinary crimes, including drug offenses and racketeering, 

under Federal criminal law. When a judge issues a roving wiretap 

order, law enforcement can apply the wiretap to a particular suspect, rather than a particular phone or communications device. 

Drug dealers often use a cell phone, throw it away and use another 

cell phone, to carry out their illegal activity. Thus, without the authority to use a roving wiretap law enforcement would not be able 

to effectively investigate these crimes. 

Prior to the enactment of the USA PATRIOT Act, a Federal 

judge could issue an order for a wiretap in a national security or 

an intelligence investigation similar to a wiretap in a criminal case. 

The law, however, failed to contain authority similar to the criminal law that allowed a Federal judge to issue a ‘‘roving wiretap’’ 

order in a national security or an intelligence case. International 

terrorists and spies are just as sophisticated as drug dealers and 

are trained to thwart surveillance by rapidly changing locations 

and communication devices such as cell phones. Accordingly, the 

USA PATRIOT Act authorized the courts the discretion to grant 

agents permission to use the same techniques in national security 

investigations to track terrorists that are used in criminal cases.10

9

11Pub. L. No. 107–56, 115 Stat. 242. 12 Richard Best, Intelligence and Law Enforcement: Countering Transnational Threats to the 

U.S. CRS Report #RL30252, December 3, 2001, p. 30. 

B. Information Sharing 

A lack of full, free, and timely information sharing between Federal law enforcement and intelligence agencies had been a problem, 

long before the 9/11 attacks. Prior to the 9/11 attacks, the Government had made attempts to improve information sharing. For example, different centers, such as the National Drug Intelligence 

Center, have been created to focus on sharing information on specific issues. While these centers helped, Government-wide improvement was still needed. The lack of information sharing stemmed 

from the distinct historical roles and cultures of law enforcement 

and the intelligence community, and from certain legal restrictions. 

After the 9/11 attacks, criticism increased that the Intelligence 

Community, especially the CIA and FBI, failed to share pertinent 

intelligence information, and as a result, had failed to ‘‘connect the 

dots’’ in a way that might have uncovered and enabled prevention 

of the attacks. The criticism was twofold: First, collecting agencies 

had not integrated and evaluated all the relevant information they 

had. Second, they had failed to ensure that relevant information 

they had collected was shared with other agencies that would need 

it to prevent attacks such as those that occurred. 

The Administration and the Congress took immediate action to 

reduce statutory impediments to sharing appropriate information. 

First, the USA PATRIOT Act,11 began to break down the barriers 

to facilitate information sharing between Federal law enforcement 

officials and the Intelligence Community. ‘‘The premise of the USAPatriot Act is that information about foreign terrorists acquired by 

law enforcement agencies, including grand jury information, should 

be available to intelligence agencies. Analysts would be able to put 

together the larger picture of groups plotting against U.S. interests.’’ 12

As mentioned earlier, H.R. 4598, the ‘‘Homeland Security Information Sharing Act’’ continued the effort to break down barriers by 

requiring the President to create procedures to strip out classified 

information so that state and local officials may receive relevant information without clearances. H.R. 4598 also incorporated H.R. 

3285, the ‘‘Federal-Local Information Sharing Partnership Act of 

2001,’’ to remove the barriers for state and local officials to share 

law enforcement and intelligence information with Federal officials. 

H.R. 4598 was added to the Homeland Security Act, which became 

Public Law No. 107–296. 

2. Implementation and Use of the USA PATRIOT Act 

Since enactment of the USA PATRIOT Act, the Department of 

Justice has used many of the tools authorized in the Act in a comprehensive campaign to detect and prosecute those who have committed, or seek to commit, terrorist crimes. For example, as of the 

fall of 2004, the Department of Justice has conducted terrorism investigations that have resulted in the charging of 310 defendants 

with criminal offenses, of whom 179 have already been convicted. 

These investigations have led to the discovery and disruption of 

over 150 terrorist cells. In addition, the tools provided by the USA 

10

13 As of the September 13, 2004 Report Congress on the Implementation of Section 1001 of 

the USA PATRIOT Act, only one allegation of civil liberties violations may be related to the 

use of a USA PATRIOT Act provision, and the investigations relating to this allegation are still 

underway. 

PATRIOT Act have enabled the Federal Government to remove 

from the United States over 515 individuals who were linked to the 

September 11th investigation. The Federal Government has also 

been able to secure at least 23 convictions or guilty pleas as the 

result of 70 terrorist financing investigations. Importantly, these 

examples, and all other activities conducted under the authorities 

of the USA PATRIOT Act, have occurred without a single substantiated allegation of civil liberties violations on the part of Department of Justice employees.13

A. Oversight Hearings during the 109th Congress 

During the 109th Congress, the Committee on the Judiciary held 

2 Full Committee and 8 Subcommittee oversight hearing on all of 

the provisions of USA PATRIOT Act that will expire on December 

31, 2005 and several that are not subject to the sunset. 

FULL COMMITTEE HEARINGS

1. May 6, 2005, Hearing with Attorney General Gonzales 

On May 6, 2005, Attorney General Gonzales testified before the 

Full Committee on the Judiciary. That hearing focused on the use 

of the law enforcement authorities granted under the USA PATRIOT Act; whether these tools have, thus far, proved useful to the 

Government’s efforts in fighting terrorism; whether existing safeguards have been effective in preventing civil liberties violations; 

and whether modifications to the Act are needed. 

2. June 8, 2005, Hearing with Deputy Attorney General James B. 

Comey 

On Wednesday, June 8, 2005, at 10:00 a.m., the Committee on 

the Judiciary held its 11th oversight hearing on the Reauthorization of the USA PATRIOT Act with Deputy Attorney General 

James B. Comey testifying on the need to Reauthorize the USA 

PATRIOT Act provisions set to expire on December 31, 2005. This 

hearing followed the 10 subcommittee hearings and provided Members and the Department of Justice the opportunity to address any

unanswered questions regarding the USA PATRIOT Act. 

3. June 10, 2005, Hearing continuation of June 8, 2005 

In accordance with House Rule XI, section 2 (J)(1), additional 

witnesses designated by the minority were called to testify on the 

subject of the ‘‘Reauthorization of the USA PATRIOT Act,’’ as an 

extension (or a continuation) of the Committee’s June 8, 2005 hearing. The witnesses were: Carlina Tapia-Ruano, American Immigration Lawyers Association; Dr. James J. Zogby, Arab American Institute; Deborah Pearlstein, U.S. Law and Security Program; and 

Chip Pitts, Amnesty International USA. 

11

SUBCOMMITTEE HEARINGS

1. April 19, 2005, Hearing on Sections 203 (b) and (d) of the USA 

PATRIOT Act and Their Effect on Information Sharing 

The Subcommittee on Crime, Terrorism, and Homeland Security 

of the Committee on the Judiciary held a hearing on sections 203 

(b) and (d) that addressed information sharing. These sections responded to the need to improve information sharing. Four witnesses—Mr. Barry Sabin, Chief of the Counterterrorism Section of 

the Criminal Division of the Department of Justice; Ms. Maureen 

Baginski, Executive Assistant Director of the FBI for Intelligence; 

Congressman Michael McCaul; and Timothy Edgar, the National 

Security Policy Counsel for the American Civil Liberties Union—

testified. 

Specifically, section 203 facilitates effective sharing of information collected through the use of criminal wiretaps, grand juries, 

and other criminal investigations, with Executive Branch officials. 

To protect privacy, the USA PATRIOT Act: (1) limits such disclosures to foreign intelligence and counterintelligence information, as 

defined by statute; (2) restricts disclosure to officials with a need 

to know in performance of official duties; and (3) retains the limitations on public or other unauthorized disclosure. Prior to passage 

of the USA PATRIOT Act, the law hampered law enforcement from 

sharing information with or receiving information from other government agencies outside of law enforcement that might nevertheless relate to terrorist activities or national security. 

Sec. 203(b) deals with information obtained through a criminal 

wiretap. The section amended section 2517 of title 18 to allow law 

enforcement officials to share foreign intelligence or counterintelligence (as defined in section 3 of the National Security Act of 1947 

(50 U.S.C. 401a)), or foreign intelligence information (as defined in 

subsection (19) of section 2510 of this title) obtained through a 

criminal wiretap with law enforcement, intelligence, protective, immigration, national defense, or national security personnel for use 

only as necessary in the conduct of that person’s official duties subject to any limitations on the unauthorized disclosure of such information. This language was similar to section 103 of H.R. 2975 that 

passed the House Judiciary Committee unanimously in October 

2001. 

Sec. 203(d) addresses information obtained through a criminal 

investigation. This section permits law enforcement officials to 

share foreign intelligence or counterintelligence (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)), or foreign intelligence information (as defined in subsection (19) of section 2510 of this title) obtained through a criminal investigation, 

for use only as necessary in the conduct of that person’s official duties subject to any limitations on the unauthorized disclosure of 

such information. This language was similar to section 154 of H.R. 

2975 that passed the House Judiciary Committee unanimously in 

October 2001. 

12

2. April 21, 2005, Hearing on—Crime, Terrorism, and the Age of 

Technology—(Section 209: Seizure of Voice-Mail Messages Pursuant to Warrants; Section 217: Interception of Computer Trespasser Communications; and Section 220: Nationwide Service 

of Search Warrants for Electronic Evidence) 

The Subcommittee on Crime, Terrorism, and Homeland Security 

held a hearing on section 209, 217, and 220 of the USA PATRIOT 

Act. Four witnesses—Laura Parsky, Deputy Assistant Attorney 

General of the Criminal Division, U.S. Department of Justice; Steven M. Martinez, Deputy Assistant Director of the Cyber Division, 

Federal Bureau of Investigation; James X. Dempsey, Executive Director of the Center for Democracy and Technology; and Peter 

Swire, Professor of Law, Mortiz College of Law, the Ohio State 

University—testified. 

In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to update the 1968 Wiretap Act, recognizing that 

emerging technologies—such as electronic mail and voice mail—

had rendered the 1968 statute outdated and inadequate. These 

1986 modifications made the criminal code ‘‘technology neutral’’ to 

address future telecommunications technologies. ‘‘Technology neutral’’ means law enforcement investigative authorities remain the 

same regardless of the technology used by the criminal to facilitate 

illegal activity. Thus, law enforcement uses the same procedures to 

seek a court order for a wiretap of a computer or a phone used by 

the criminal. 

As expected, cyber technology has advanced rapidly. As a result, 

people communicate quickly and effectively. Unfortunately, technology has also facilitated crime and terrorism. 

Understanding these problems, the USA PATRIOT Act updated 

criminal law to address these new challenges. These updates also 

were designed to help law enforcement assess whether unlawful 

conduct is the result of criminal activity or terrorist activity and to 

respond appropriately. Some of these provisions are set to expire 

on December 31, 2005. The April 21, 2005 hearing covered three 

of those provisions: Sections 209, 217, and 220. 

Sec. 209. Seizure of Voice-Mail Messages Pursuant to Warrants. 

Section 209 amended 18 U.S.C. § 2703 (a) and (b) by adding language to cover stored wire communications—such as a voice mail. 

Section 209 updated the law to clarify that the criminal code remains technology-neutral. Section 209 clarified that stored voice 

mail is, in fact, a stored communication, and therefore is covered 

by 18 U.S.C. § 2703. This language is similar to section 102 of H.R. 

2975 that passed the House Judiciary Committee unanimously. 

Sec. 217. Interception of Computer Trespasser Communications. 

The courts have long recognized that providers of communications 

services possess a ‘‘fundamental right to take reasonable measures 

to protect themselves and their properties against the illegal acts 

of a trespasser.’’ Bubis v. United States, 384 F.2d 643, 648 (9th Cir. 

1967). Computer owners, however, often lack the expertise, equipment, or financial resources required to monitor attacks, and thus 

had no way to exercise their rights to protect themselves from unauthorized attackers—who could be terrorists or criminals engaged 

in attacking critical infrastructure, or the economy. Prior to the enactment of the USA PATRIOT Act, the law was unclear as to 

whether a victim of computer trespassing was allowed to request 

13

14The government must receive court authorization through a search warrant to search or 

seize property or a person, with limited exceptions. For a search warrant to be issued, the government must provide sworn affidavit to the magistrate that grounds exists or there is probable 

cause to believe ground exist—i.e., a crime is or is about to be committed. 

law enforcement assistance in monitoring unauthorized attacks as 

they occur. 

These attacks come in many forms that cost companies and citizens millions of dollars and endanger public safety. For instance, 

denial-of-service attacks, where the objective of the attack is to disable a computer system, can shut down businesses or emergency 

responders or national security centers. This type of attack causes 

the target site’s servers to run out of memory, and become incapable of responding to the queries of legitimate customers or users. 

The victims of these computer trespassers should be able to authorize law enforcement to intercept the trespassers’ communications, 

similar to a store owner who authorizes the police to stop an intruder. To correct this problem, and help to protect national security, section 217 of the Act amended the wiretap statute to allow 

victims of computer attacks to authorize persons ‘‘acting under 

color of law’’ to monitor trespassers on their computer systems in 

a narrow class of cases. 

Sec. 220. Nationwide Service of Search Warrants for Electronic 

Evidence. Prior to the enactment of the USA PATRIOT Act, Rule 

of the Federal Rules of Criminal Procedure of Criminal Procedure 

41 required that the ‘‘warrant’’ be obtained ‘‘within the district’’ 

where the property to be searched is located. An investigator, for 

example, located in Boston who is investigating a suspected terrorist in that city, might have to seek a suspect’s electronic e-mail 

from an Internet service provider (ISP) account located in California. The investigator would then need to coordinate with agents, 

prosecutors, and judges in the district in California where the ISP 

is located to obtain a warrant to search. Time delays caused by the 

need to coordinate with numerous parties could be devastating to 

an investigation, especially where additional criminal or terrorist 

acts are planned. 

Section 220 of the Act amended 18 U.S.C. §2703 to authorize the 

court with jurisdiction over the investigation to issue the warrant 

directly, without requiring the intervention of its counterpart in the 

district where the ISP is located. Before and after the USA PATRIOT Act, 18 U.S.C. §2703(a) requires a search warrant to compel 

service providers to disclose unopened e-mails. The USA PATRIOT 

Act did not affect the requirement nor the probable cause standard 

for a search warrant,14 but rather addresses investigative delays 

caused by the cross-jurisdictional nature of the Internet. This language is similar to section 108 of H.R. 2975 that passed the House 

Judiciary Committee unanimously. 

3. April 26, 2005 Hearing—Have Sections 204, 207, 214 and 225 of 

the USA PATRIOT Act, and Sections 6001 and 6002 of the Intelligence Reform and Terrorism Prevention Act of 2004, Improved FISA Investigations? 

On Tuesday, April 26, 2005, the Subcommittee held a hearing to 

examine sections 204, 207, 214, and 225 of the USA PATRIOT Act, 

and sections 6001 and 6002 of the Intelligence Reform and Terrorism Prevention Act of 2004. Three witnesses—the Honorable 

14

Mary Beth Buchanan, United States Attorney for the Western District of Pennsylvania; James Baker, Office for Intelligence Policy 

and Review, U.S. Department of Justice; and Suzanne Spaulding, 

Managing Director, the Harbour Group, LLC—testified. 

Sec. 204. Clarification of Intelligence Exceptions from Limitations on Interception and Disclosure of Wire, Oral, and Electronic 

Communications (18 U.S.C. 2511(2)(f)). This section amended section 2511(2)(f) of the Federal criminal code, which provided that 

Federal criminal law relating to law enforcement electronic surveillance (chapter 119, title 18) and access to stored communications 

and communications transactions records (chapter 121, title 18) did 

not affect the use of the Foreign Intelligence Surveillance Act 

(FISA) for intelligence purposes. Section 204 is a technical clarification amendment, which added that chapter 206 of title 18 is also 

covered by section 2511(2)(f). Thus, Federal criminal law relating 

to the use of pen registers and trap and trace devices under chapter 206 did not affect the use of FISA for intelligence purposes. 

Sec. 207. Duration of FISA Surveillance of Non-United States 

Persons Who Are Agents of a Foreign Power. Prior to enactment 

of the USA PATRIOT Act, the government had 90 days to carry out 

surveillance under a FISA court order and 45 days to conduct a 

physical search under FISA, before seeking an extension. Because 

it often takes longer than these established periods to get on the 

premises or to conduct electronic surveillance and the delay in reapplying for an extension or new order posed a threat to national 

security, this provision added 30 days to the authorized period for 

surveillance from 90 days to 120 days. It also extended the period 

for physical searches from 45 days to 90 days. 

Sec. 214. Pen Register and Trap and Trace Authority Under 

FISA. Section 214 of the Act amends 50 U.S.C. § 1842 (Section 402 

of the Foreign Intelligence Surveillance Act of 1978 (FISA)). Section 

1842 is the pen register and trap and trace provision in the FISA 

that is modeled after Federal criminal law provisions (18 U.S.C. 

§ 3121 et. seq.). A pen register gathers out-going telephone or Internet-dialed numbers and a trap and trace gathers incoming numbers. This is the least intrusive method of electronic surveillance. 

Section 214 amends FISA (the pen register and trap and trace provisions) to mirror similar provisions that currently exist in criminal 

law (18 U.S.C. § 3121 et. seq.). Prior to the enactment of the USA 

PATRIOT Act, the ‘‘pen register and trap and trace’’ provisions of 

FISA went beyond the criminal law requirement of certification of 

relevance, and required the Government to provide information 

that demonstrated that the communication instrument (e.g., a telephone line) has been or was about to be used to contact a ‘‘foreign 

power’’ or agent of a foreign power. This was a greater burden than 

exists in even a minor criminal investigation. 

Section 214 clarifies that an application for pen register and trap 

and trace authority under FISA will be the same as the pen register and trap and trace authority defined in the criminal law. It 

requires the attorney for the government to certify to the court that 

the information sought is relevant to an ongoing FISA investigation. The statutory burden under FISA of having to show that the 

telephone line has been, or is about to be used, to contact a foreign 

power or terrorist is eliminated to conform to the existing and less 

burdensome criminal standards. The attorney for the government 

15

15 50 U.S.C. 1842. 

still must certify the information sought is relevant to an ongoing 

FISA investigation, which continues to be directed at an agent of 

a foreign power. This section codifies lawfulness of court authorized 

pen register and trap and trace device use for non-content communications over telecommunication technology other than by telephone.15 Section 214 of the Act is substantively similar to section 

155 of H.R. 2974, the House version that passed the Judiciary 

Committee unanimously. Section 214 includes protections for U.S. 

persons, which prohibit the investigation from being conducted 

based solely on activities protected by the First Amendment. 

Sec. 225. Immunity for Compliance with FISA Wiretap. While 

Federal criminal wiretap law immunizes those who assist law enforcement in the execution of a criminal wiretap interception order, 

18 U.S.C. 2511(2)(a), this section provides immunity to anyone who 

complies with a FISA surveillance (wiretap) order. 

Section 6001 of the Intelligence Reform and Terrorism Prevention Act. Individual Terrorists as Agents of Foreign Powers. This 

section amends the definition of ‘‘Agent of a Foreign Power’’ under 

section 50 U.S.C. § 1801(b)(1) (the Foreign Intelligence Surveillance 

Act of 1978) by adding new subparagraph C. Section 1801(b)(1) defined ‘‘Agent of a foreign power’’ for any person other than a United 

States person, who—

(A) acts in the United States as an officer or employee of a 

foreign power, or as a member of a foreign power as defined 

in subsection (a)(4) of this section; 

(B) acts for or on behalf of a foreign power which engages in 

clandestine intelligence activities in the United States contrary 

to the interests of the United States, when the circumstances 

of such person’s presence in the United States indicate that 

such person may engage in such activities in the United 

States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires 

with any person to engage in such activities; 

Section 6001 of the Intelligence Reform and Terrorism Prevention Act added new subparagraph C to the definition, which 

states ‘‘Agent of a foreign power’’ for any person other than a 

United States person, includes a person who ‘‘engages in international terrorism or activities in preparation thereof.’’ This 

new definition is to reach ‘‘lone wolf’’ terrorists who are nonU.S. persons who engage in international terrorism, regardless 

of whether they are affiliated with an international terrorist 

group. To address concerns about the provision, the USA PATRIOT Act sunset applies and, had H.R. 3199 not removed the 

sunset provision, the definition would have expired on December 31, 2005. 

When FISA was enacted in the 1970s, terrorists usually 

were members of distinct, hierarchical terror groups. Today, 

the ‘‘lone wolfs’’ often are not formal members of any group. Instead, they are part of a movement, such as a Jihad Against 

America, and occasionally act alone. FISA authority was updated to reflect this new threat.

It should be noted that this section does not change the requirement for a judicial finding of probable cause that the tarVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00019 Fmt 6659 Sfmt 6602 E:\HR\OC\HR174P1.000 HR174P1
16

get is an agent of a foreign power. See section 1805(a)(3) and 

(b). The new definition requires that for a non-U.S. person to 

be deemed an agent of a foreign power, that person must be 

engaged in or preparing to engage in international terrorism. 

Thus, under the probable cause requirement currently in law 

and the new definition in this section, before a judge can issue 

a FISA order for surveillance there must be a showing of probable cause that the person is engaged or preparing to engage 

in international terrorism. 

Section 6002 of the Intelligence Reform and Terrorism Prevention Act. Additional Semiannual Reporting Requirements Under 

the Foreign Intelligence Surveillance Act. The section also includes 

additional reporting requirements to the House and Senate Judiciary Committees regarding the use of FISA. 

4. April 28, 2005, Hearing—Have Sections 206 and 215 Improved 

FISA Investigations? 

On Thursday, April 28, 2005, the Subcommittee held a hearing 

to examine sections 206 and 215 of the USA PATRIOT Act. Four 

witnesses—the Honorable Kenneth L. Wainstein, U.S. Attorney for 

the District of Columbia; James Baker, Office for Intelligence Policy and Review, U.S. Department of Justice; Robert Khuzami, 

former Assistant United States Attorney in the United States Attorney’s Office for the Southern District of New York; and Greg 

Nojeim, the Associate Director and Chief Legislative Counsel of the 

American Civil Liberties Union’s Washington National Office—testified. 

Sec. 206. Roving surveillance authority under the Foreign Intelligence Surveillance Act of 1978. This section amends 105(c)(2)(B) 

of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 

1805(c)(2)(B)) to update the authority to allow a court to authorize 

a ‘‘roving wiretap’’ ‘‘in circumstances where the Court finds that 

the actions of the target of the application may have the effect of 

thwarting the identification of a specified person,’’ that a common 

carrier, landlord, custodian, or other person not specified in the 

Court’s order be required to furnish the applicant information and 

technical assistance necessary to accomplish electronic surveillance 

in a manner that will protect its secrecy and produce a minimum 

of interference with the services that such person is providing to 

the target of electronic surveillance.’’ This language was the same 

as the language in section 152 of H.R. 2975 that passed the House 

Judiciary Committee unanimously in the 107th Congress. 

Federal judges have had the discretion for decades to grant law 

enforcement the authority to use ‘‘roving wiretaps’’ to investigate 

ordinary crimes, including drug offenses and racketeering, under 

Federal criminal law. When a judge issues a roving wiretap order, 

law enforcement can apply the wiretap to a particular suspect, 

rather than to a particular phone or communications device. 

While international terrorists and spies are just as sophisticated 

as drug dealers and are trained to thwart surveillance by rapidly 

changing locations and communication devices such as cell phones, 

the law prior to the USA PATRIOT Act did not contain authority 

similar to the criminal law that allowed a Federal judge to issue 

a ‘‘roving wiretap’’ order in a national security or intelligence case. 

As a result, the Government had to return to the FISA court for 

17

an order that named the new carrier, landlord, etc., before effecting 

surveillance each time the terrorist or spy threw away his or her 

cell phone and used a different cell phone. Under section 206 of the 

USA PATRIOT Act, the FBI presents the newly discovered carrier, 

landlord, custodian, or other person with a generic order issued by 

the court, and the FBI can then effect FISA coverage as soon as 

it is technically feasible. 

Sec. 215. Access to Records and Other Items Under the Foreign 

Intelligence Surveillance Act. Prior and subsequent to enactment of 

the USA PATRIOT Act, law enforcement could obtain records from 

all manner of businesses through grand jury-issued subpoenas. 

Targets of grand jury investigations do not have standing to challenge a grand jury subpoena directed at a third party. This access 

includes libraries and bookstores, for records relevant to criminal 

inquiries. For example, in the 1997 Gianni Versace murder case, a 

Florida grand jury subpoenaed records from public libraries in 

Miami Beach. In the 1990 Zodiac gunman investigation, a grand 

jury in Queens, New York, subpoenaed records from the library at 

Fifth Avenue and 42d Street in Manhattan. Investigators believed 

that the gunman was inspired by a Scottish occult poet, and wanted to learn who had checked out his books. Section 215 of the USA 

PATRIOT Act created similar authority, but with more stringent 

requirements. Section 215 provides the FISA court discretion to 

issue an order for business records related to ‘‘international terrorism and clandestine intelligence activities.’’ These judicial orders 

conceivably could be issued to bookstores or libraries, but section 

215 does not single them out. Section 215 has a very narrow scope 

that can only be used: (1) ‘‘to obtain foreign intelligence information 

not concerning a United States person’’; or (2) ‘‘to protect against 

international terrorism or clandestine intelligence activities.’’ 50 

U.S.C. § 1861(b)(2). 

FBI agents cannot obtain records under section 215 unless 

they receive a court order. Grand jury subpoenas, by contrast, 

do not require judicial approval. Agents cannot use section 215 

to unilaterally compel libraries or any other entity to turn over 

their records. Agents must obtain such documents only by appearing before the FISA court and convincing the court that 

these business records are needed. See 50 U.S.C. § 1861(b). 

Section 215 goes to great lengths to preserve the First Amendment rights of libraries, their patrons, and other affected entities. It expressly provides that the FBI cannot conduct investigations ‘‘of a United States person solely on the basis of activities protected by the first amendment to the Constitution of 

the United States.’’ 50 U.S.C. § 1861(a)(2). 

Section 215 provides for thorough congressional oversight. 

Every six months, the Attorney General is required to ‘‘fully inform’’ Congress on the number of times agents have sought a 

court order under section 215, as well as the number of times 

such requests were granted, modified, or denied. See 50 U.S.C. 

§ 1862. 

On April 28, 2005, the United States Attorney for the District of 

Columbia testified that some of the 9/11 hijackers used libraries in 

the United States. He stated: 

Investigators have received information that individuals believed to be 9/11 hijackers Wail Alshehri, Waleed Alshehri, and 

18

Marwan Al-Shehhi visited the Del Ray Public Library in Del 

Ray Beach, Florida. Wail Alshehri and Waleed Alshehri entered the library one afternoon in July of 2001, and asked to 

use the library’s computers to access the Internet. After about 

an hour a third man, Marwan Al-Shehhi, joined the two. 

Waleed and Wail Alshehri were hijackers aboard American 

Airlines Flight 11, while Al-Shehhi was the pilot who took control of United Airlines Flight 175, both of those flights crashed 

into the World Trade Center on September 11th. * * * In addition, investigators tracing the activities of the hijackers determined that on four occasions in August of 2001, individuals 

using Internet accounts registered to Nawaf Alhazmi and 

Khalid Almihdhar, 9/11 hijackers, used public access computers in the library of a state college in New Jersey. The computers in the library were used to review and order airline 

tickets on an Internet travel reservations site. Alhazmi and 

Almihdhar were hijackers aboard American Airlines Flight 77, 

which took off from Dulles Airport and crashed into the Pentagon. The last documented visit to the library occurred on August 30th, 2001. On that occasion, records indicate that a person using Alhazmi’s account used the library’s computer to review September 11th reservations that had been previously 

booked.’’ 

On April 6, 2005 the Attorney General testified before the House 

Committee on the Judiciary and stated that the FISA court has 

granted the Department’s request for a 215 order 35 times as of 

March 30, 2005. He went on to state that the Department has not 

sought a section 215 order to obtain library or book store records, 

medical records, or gun sale records. He also explained that the 

provision to date has been used only to obtain driver’s license 

records, public accommodation records, apartment leasing records, 

credit card records, and subscriber information, such as names and 

addresses, for telephone numbers captured through court-authorized pen-register devices. 

5. April 28, 2005, Hearing—Section 218 of the USA PATRIOT Act—

If it Expires Will the ‘‘Wall’’ Return? 

On Thursday, April 28, 2005, the Subcommittee held a hearing, 

which focused on section 218 of the USA PATRIOT Act. Some have 

argued that Section 218 contributed to lowering the ‘‘Wall,’’ and is 

set to expire on December 31, 2005. The ‘‘Wall’’ is a metaphorical 

term that described the legal and administrative constraints created to separate the operations of law enforcement and the intelligence community. Four witnesses—the Honorable Patrick Fitzgerald, U.S. Attorney for the Northern District of Illinois; David 

Kris, former Associate Deputy Attorney General for the Department of Justice; Kate Martin, Director of the Center for National 

Security Studies; and Peter Swire, Professor of Law at Ohio State 

University—testified. 

Section 218 amended 50 U.S.C. § 1804(a)(7)(B) and 1823(a)(7)(B) 

(the Foreign Intelligence Surveillance Act) to improve information 

sharing between law enforcement and the intelligence community. 

The Foreign Intelligence Surveillance Act limited surveillance and 

physical search orders to instances where authorities certified that 

‘‘the purpose’’ of the order was for foreign intelligence gathering; 

19

16 In re: Sealed Case No. 02–001, FIS Ct. Rev., No. 02–001, 11/18/02, reversing 71 CrL 615. 17October 17, 2000, Memorandum for the Counsel, Office of Intelligence Policy and Review, 

U.S. DOJ. 

subsequent case law raised a question of whether it was sufficient 

to meet ‘‘the purpose’’ requirement that foreign intelligence gathering was ‘‘the primary purpose’’ or whether ‘‘the purpose’’ requirement could be satisfied perhaps when a criminal investigation was 

not the primary purpose, 743 F.2d 59; 952 F.2d 565. Section 218 

makes it clear that foreign intelligence gathering must be ‘‘a significant’’ reason for a FISA application, but need not be the primary purpose, as the courts had interpreted the law to mean.16

Section 218 of the USA PATRIOT Act has helped to lower the 

‘‘Wall’’ that prevented sharing of information between law enforcement and the intelligence community. This section is subject to the 

December 31, 2005 sunset. 

6. May 3, 2005, Oversight Hearing on Sections 201, 202, 213, and 

223 of the USA PATRIOT Act and Their Effect on Law Enforcement Surveillance 

On Tuesday, May 3, 2005, the Subcommittee on Crime, Terrorism, and Homeland Security for the Committee held a hearing 

on the USA PATRIOT Act. The hearing focused on the effect of sections 201, 202, 213, and 223 on law enforcement surveillance. Although section 213 does not sunset, the Committee reviewed this 

section of the USA PATRIOT Act to accommodate a request of the 

Minority. Section 213 covers delayed notice search warrants. Four 

witnesses—the Honorable Michael J. Sullivan, U.S. Attorney for 

the District of Massachusetts; Chuck Rosenberg, Chief of Staff to 

the Deputy Attorney General; Heather MacDonald, John M. Olin 

Fellow at the Manhattan Institute; and the Honorable Bob Barr, 

former Representative of Georgia’s Seventh District—testified. 

This hearing examined sections 201, 202, and 203 of the USA 

PATRIOT Act that relate to criminal wiretaps and section 213 that 

relates to when notice is provided for certain criminal search warrants. Sections 201, 202, and 223 expire on December 31, 2005. 

Section 213 does not sunset. 

A. The Wiretap Provisions Set To Expire 

1. Criminal Wiretap Authority Before the USA PATRIOT Act 

‘‘Title III of the Omnibus Crime Control and Safe Streets Act of 

1968, 18 U.S.C. §§ 2510–2522 (1994 & Supp. II 1996), requires the 

government, unless otherwise permitted, to obtain an order of a 

court before conducting electronic surveillance. The government is 

permitted to seek such orders only in connection with the investigation of the criminal offenses enumerated in section 2516 of title 

18.’’ 17

For Federal investigations, section 2516 distinguishes between 

wire (i.e., telephone) and oral (i.e., face-to-face conversation) communications, and electronic communications (i.e., conversation 

using a computer). The USA PATRIOT Act did not change these 

distinctions. • For wire and oral communications, section 2516(1) allows 

designated senior officials in the Department of Justice to authorize an application for a court order to approve interception 

20

of wire and oral communications where the interception may 

provide evidence of certain Federal offenses known as ‘‘wiretap 

predicates.’’ Wiretap predicates are enumerated crimes for 

which Congress has authorized law enforcement to use a wiretap over a wire or when oral communications occur. 

• For wiretapping electronic communications, Congress authorized Federal investigators, under 18 U.S.C. § 2516(3), to 

apply for a court order for interception of electronic communications where the interception may provide evidence of any 

Federal felony. 

2. Wiretap Authority as amended by the USA PATRIOT Act 

The USA PATRIOT Act added to the wiretap predicates under 

sections 201 and 202, and added safeguards under section 223 designed to prohibit the unauthorized disclosure of information obtained under the Government’s updated surveillance authority. 

Sec. 201. Terrorism as a predicate act for authorization of wiretaps. This section added new ‘‘wiretap predicates’’ under section 

2516 of title 18 of the Federal criminal code that relate to crimes 

of terrorism. Section 201 provides the courts discretion to grant a 

wiretap for the interception of wire, oral, or electronic communications in the investigation of: (1) possible crimes relating to chemical 

weapons under 18 U.S.C. § 229 and (2) possible crimes relating to 

terrorism under 18 U.S.C. §§ 2332, 2332a, 2332b, 2332d, 2339A, or 

2339B. While some crimes involving terrorism were already wiretap predicates, others were not. The USA PATRIOT Act closed the 

gap with respect to the use of this key investigative tool that significantly enhances law enforcement ability to prevent a terrorist 

attack and prosecute crimes connected with it. Such authority already existed for a number of other less serious crimes, such as 

trafficking automobile parts. Prior to the enactment of the USA 

PATRIOT Act, law enforcement could already conduct wiretaps on 

electronic communications under section 2516(3) for these felonies. 

The USA PATRIOT Act changed the law to now permit wiretaps 

on wire and oral communications as well. 

Sec. 202. Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse. This section adds 

a new ‘‘wiretap predicate’’ under section 2516 of title 18 of the Federal criminal code for serious computer hacking offenses, including 

cyberterrorism. Specifically, the wiretap predicate is for crimes 

under section 1030 of title 18 when the violation is a felony that 

relates to computer fraud and abuse. Prior to the USA PATRIOT 

Act, law enforcement could already conduct wiretaps on electronic 

communications under section 2516(3) for such felonies. The USA 

PATRIOT Act changed the law to now also permit wiretaps on wire 

and oral communications. 

3. Wiretap Authority that Remained Unchanged by the USA 

PATRIOT Act 

Sections 201 and 202 of the USA PATRIOT Act in no way change 

the strict limitations on how wiretaps may be used. Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act 

21

18Omnibus Crime Control and Safe Streets Act, 87 Stat. 197 (1968)(codified as amended at 

18 U.S.C. §§ 2510–2520 (1970). 19 Charles Doyle & Gina Stevens, Congressional Research Service, Library of Congress, Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, 

at 6 (2001). 20 87 Stat. 197, 18 U.S.C. §§ 2510–2520 (1970 ed.). 21 18 U.S.C. § 2511. 22 18 U.S.C. § 2518. 23 18 U.S.C. § 2518(1)(b). 24 18 U.S.C. § 2518 (emphasis added). 25 18 U.S.C. § 2518(5). 

of 1968 18 that outlines what is and is not permissible with regard 

to wiretapping and electronic eavesdropping.19 Title III restrictions 

go beyond Fourth Amendment constitutional protections and include a statutory suppression rule to exclude evidence that was collected in violation of Title III.20 Except under limited circumstances, it is unlawful to intercept oral, wire, and electronic 

communications.21 Accordingly, under the Act, Federal and state 

law enforcement may only use wiretaps under strict limitations.22

Congress created these procedures to allow limited law enforcement access to private communications and communication records 

for investigations consistent with Fourth Amendment rights. Title 

18 U.S.C. § 2518 sets strict procedures for the use of a wiretap. Section 2518(1) requires the application to be made under written oath 

or affirmation to a judge of competent jurisdiction. Section 

2518(1)(b) requires that the application set forth, among other 

things, ‘‘a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that 

an order should be issued. . . .’’ These facts should include, among 

other things, the ‘‘details as to the particular offense that has been, 

is being, or is about to be committed’’ and ‘‘the identity of the person, if known, committing the offense and whose communications 

are to be intercepted.’’ 23 Section 2518(3) also includes requirements 

that for the judge to issue a wiretap order the judge must believe 

(1) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of [title 18]; (2) there is probable cause for 

belief that particular communications concerning that offense will 

be obtained through such interception; and (3) normal investigative 

procedures have been tried and have failed or reasonably appear 

to be unlikely to succeed if tried or to be too dangerous.24 To further protect privacy, law enforcement is required ‘‘to minimize the 

interception of communications not otherwise subject to interception [that is, noncriminal conversations] under this chapter, and 

must terminate upon attainment of the authorized objective.’’ 25

Sec. 223. Civil Liability for Certain Unauthorized Disclosures. 

This section is similar to section 161 of H.R. 2975 that passed the 

House Judiciary Committee unanimously. Section 223 includes 

safeguards designed to prevent the unauthorized disclosure of information obtained under the Government’s updated surveillance 

authority, by amending the criminal code to provide for administrative discipline of Federal officers or employees, as well as by allowing for civil actions to be brought against the United States for 

damages by any person aggrieved by such disclosures. 

22

26See Dalia v. United States, 441 U.S. 238 (1979); see also Katz v. United States, 389 U.S. 

347 (1967). 27 April 4, 2005 U.S. Department of Justice letter to Senator Spector. p. 3 citing See United 

States v. Freitas, 800 F.2d 1451 (9th Cir. 1986); United States v. Villegas, 899 F.2d 1324 (2d 

Cir. 1990); United States v. Simons, 206 F.3d 392 (4th Cir. 2000). 

B. Delayed Notice 

1. Pre-existing Authority for Delayed Notice 

Contrary to reports, the USA PATRIOT Act did not create delayed notice search warrants. Delayed notice search warrants have 

been used for decades prior to enactment of the USA PATRIOT 

Act. In 1979, the U.S. Supreme Court expressly held in Dalia v. 

United States that the Fourth Amendment does not require law enforcement to give immediate notice of the execution of a search 

warrant.26 The Department of Justice states that three Federal 

Courts of Appeals had considered the constitutionality of delayednotice search warrants since 1979 and upheld their constitutionality.27

2. What Delayed Notice Means 

A delayed notice search warrant simply means that a court has 

expressly authorized investigators to delay notifying a suspect that 

a search warrant has been executed (i.e., a court-ordered search 

has occurred). The search warrant is the same, regardless of when 

the suspect receives notice. Thus, before a search warrant is issued, 

whether notice is delayed or not, a Federal judge must find that 

there is probable cause to believe the property to be searched or 

seized constitutes evidence of a criminal offense. 

3. Section 213 Creates a Uniform Nationwide Standard for 

a Court To Authorize Delayed Notice 

Congress included section 213 in the USA PATRIOT Act to create a uniform nationwide standard for the issuance of these warrants. Under section 213 there are limited circumstances when a 

court may delay notice. These circumstances are the same predicate circumstances permitted in an application for delaying notice 

in a search warrant for stored communications under section 

2705(a)(2) of title 18, which predated the USA PATRIOT Act. For 

a court to permit a delay in the notice of a search of a suspect’s 

property, the investigator or prosecutor must show that there is 

reasonable cause to believe that if the suspect is notified at the 

same time as the search one of the following situations may occur: • Notification would endanger the life or physical safety of 

an individual; • Notification would cause flight from prosecution; • Notification would result in destruction of, or tampering 

with, evidence; • Notification would result in intimidation of potential witnesses; or • Notification would cause serious jeopardy to an investigation or unduly delay a trial. 

4. Notification Required Within a Reasonable Period of Time 

The subject of the search must be notified within a reasonable 

period of time as determined by the court. Congress retained disVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00026 Fmt 6659 Sfmt 6602 E:\HR\OC\HR174P1.000 HR174P1
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cretion for the courts to review the facts and determine what a reasonable period time is to delay the notice, as that is necessarily dependent upon the facts of each case. According to the Department 

of Justice, the shortest period of time for which the Government 

has requested delayed-notice for a search warrant is 7 days and the 

longest is 180 days. This figure is from a survey of the 94 U.S. Attorneys’ Offices for a period between April 1, 2003, and January 31, 

2005. 

In an April 4, 2005, letter to Senator Specter, the Department of 

Justice provided statistics on the number of search warrants granted and the number of those for which delayed notice was sought 

and granted: • 32,529 search warrants were handled by U.S. District 

Courts during a 12-month period ending September 30, 2003, 

according to the Administrative Office of the U.S. Courts. • 61 search warrants had delayed notice in a comparable 14-

month period—between April 2003, and July 2004, according 

to a Department survey of the U.S. Attorney Offices. • When comparing the two periods, delayed notice under 

section 213 was granted for only 0.2 percent of the total search 

warrants handled by the courts. • 155 search warrants had delayed notice in the period from 

enactment of the USA PATRIOT Act on October 26, 2001 

through January 31, 2005—a period of more than three years. • Assuming that the number of search warrants was the 

same for three years, the number would be 0.15 percent of the 

total search warrants handled by the courts. • Of the 98 U.S. Attorneys’ Offices, 48 Offices never used a 

delayed notice search warrant under section 213 and only 40 

Offices—less than half of the total number of U.S. Attorneys’ 

Offices—used a delayed notice search warrant under any authority. • Of the 40 Offices that used section 213, 17 used section 

213 only once. 

7. Tuesday, May 5, 2005—Oversight Hearing on Section 212 of the 

USA PATRIOT Act That Allows Emergency Disclosure of Electronic Communications To Protect Life and Limb 

On Thursday, May 5, 2005, the Subcommittee held a hearing on 

section 212 of the USA 1PATRIOT Act. Section 212 of the USA PATRIOT Act allows computer-service providers to disclose electronic 

communications in life-threatening emergencies to law enforcement 

and is scheduled to expire on December 31, 2005. 

Four witnesses—the Honorable William Moschella, Assistant Attorney General, Office of Legislative Affairs, U.S. Department of 

Justice; Willie Hulon, Assistant Director of the Counterterrorism 

Division, Federal Bureau of Investigation; Professor Orrin Kerr, 

Professor of Law at the George Washington University Law School; 

and James X. Dempsey, Executive Director of the Center for Democracy and Technology as the witness for the Minority—testified. 

This hearing examined section 212 of the USA PATRIOT Act 

that allows computer-service providers to disclose information 

under emergencies that threaten life or limb. To understand the effect of section 212, following is an explanation of the prohibitions 

for disclosing stored electronic communications that existed before 

24

28Field Guidance on New Authorities That Relate to Computer Crime and Electronic Evidence 

Enacted in the USA PATRIOT Act of 2001, Computer Crime and Intellectual Property Section 

(CCIPS), U.S. Dept. of Justice. 

and exist after enactment of the USA PATRIOT Act. The 1986 

Electronic Communications Privacy Act (ECPA) to authorize Government access to e-mail and other electronic communications ‘‘in 

storage.’’ Section 2701(a) of that chapter makes it a Federal offense 

to unlawfully access stored communications. Subsection (c) of 18 

U.S.C. § 2701 provides exceptions to the prohibitions in (a). Those 

exceptions include conduct authorized by the person or entity providing a wire or electronic communications service; conduct authorized by a user of that service with respect to a communication of 

or intended for that user; and exceptions described in sections 

2702, 2703, 2704, and 2518 of title 18. 

Subsection 2702(a) restricts voluntary disclosure of customer 

communications or records, unless the disclosure falls under one of 

the specified exceptions in subsections 2702(b) or 2702(c). Subsection 2702(b) provides exceptions for disclosure of the contents of 

a communication. Subsection 2702(c) provides exceptions for the 

disclosure of customer records. Under section 2702(c) a provider 

covered by subsection 2702(a) may divulge a record or other information pertaining to a subscriber to or customer of such service 

that does not include the contents of communications covered by 

subsections 2701(a)(1) or (a)(2). 

Section 2703 provides the standards for Government access to 

electronic communications in storage. Section 2703(a) requires a 

search warrant to compel service providers to disclose unopened emails. 

Sec. 212. Emergency Disclosure of Electronic Communications to 

Protect Life and Limb. Section 212 of the USA PATRIOT Act 

amended sections 2702 and 2703 of title 18. Prior to enactment of 

the USA PATRIOT Act, there were two basic problems with the 

disclosure rules for stored electronic communications. First, the law 

contained no provision allowing electronic communications service 

providers to voluntarily disclose communications when necessary to 

protect life and limb. Thus, ‘‘for example, an Internet service provider (‘‘ISP’’) independently learned that one of its customers was 

part of a conspiracy to commit an imminent terrorist attack, 

prompt disclosure of the account information to law enforcement 

could save lives. Since providing this information did not fall within one of the statutory exceptions, however, an ISP making such 

a disclosure could be sued civilly.’’ 28

Second, while the law allowed communications service providers 

to protect their rights and property by disclosing stored communications that contained content, the law did not allow them to disclose communications that contained ‘‘non-content’’ records for such 

protection. Allowing providers to disclose content, but not non-content communications, to protect their rights and property had, according to the Department of Justice, substantially hindered providers’ ability to protect themselves from cyber-terrorists and criminals. 

The USA PATRIOT Act addresses both issues. To resolve the 

first problem addressing life and limb emergencies, section 212 

amends subsection 2702(b) to authorize communications service 

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29The Cyber Security Enhancement Act was incorporated into the Homeland Security Act of 

2002. 30Field Guidance on New Authorities That Relate to Computer Crime and Electronic Evidence 

Enacted in the USA PATRIOT Act of 2001, Computer Crime and Intellectual Property Section 

(CCIPS), U.S. Dept. of Justice. 

tent’’ communications of their customers or subscribers if the provider reasonably believes that an emergency involving immediate 

danger of death or serious physical injury to any person requires 

disclosure of the information without delay. This language was 

later amended in 2002 under the ‘‘Cyber Security Enhancement 

Act,’’ which was introduced by Mr. Lamar Smith, then Chairman 

of the Subcommittee on Crime, Terrorism, and Homeland Security.29

The Cyber Security Enhancement Act contains a section that 

made a conforming amendment to the USA PATRIOT Act to allow 

communications services providers to disclose communications to 

government entities in emergency situations where the provider in 

good faith believes that there is a danger of death or physical injury. For customer communications, the USA PATRIOT Act creates 

an exception that allows emergency disclosures to ‘‘law enforcement,’’ when the provider reasonably believes there was immediate 

danger. For customer records, however, the USA PATRIOT Act creates a broader exception allowing disclosure of such records to ‘‘a 

governmental entity.’’ This section changes the emergency exception for disclosing customer communications to include other Government agencies, such as emergency response personnel, health 

officials, and the Department of Defense. Thus, the provider could 

contact, for instance, the Centers for Disease Control as well as law 

enforcement. It should be noted that section 212 does not impose 

an affirmative obligation to review customer communications in 

search of such imminent dangers. 

As to the second problem regarding property rights of the communications services provider, section 212 amends the law to allow 

communications services providers to disclose non-content information (such as the subscriber’s login records). ‘‘It accomplishes this 

change by two related sets of amendments. First, amendments to 

sections 2702 and 2703 of title 18 simplify the treatment of voluntary disclosures by providers by moving all such provisions to 

2702. Thus, section 2702 now regulates all permissive disclosures 

(of content and non-content records alike), while section 2703 covers only compulsory disclosures by providers. Second, an amendment to new subsection 2702(c)(3) clarifies that service providers do 

have the statutory authority to disclose non-content records to protect their rights and property. All of these changes will sunset December 31, 2005.’’ 30

8. Tuesday, May 10, 2005, Oversight Hearing on the Prohibition of 

Material Support to Terrorists and Foreign Terrorist Organizations and on the DOJ Inspector General’s Report on Civil Liberty Violations Under the USA PATRIOT Act 

On Tuesday, May 10, 2005, the Subcommittee on Crime, Terrorism, and Homeland Security for the Committee on the Judiciary 

held a hearing on the USA PATRIOT Act. This hearing examined 

the prohibition of material support to terrorists and foreign terrorist organizations and the requirement of the Department of JusVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00029 Fmt 6659 Sfmt 6602 E:\HR\OC\HR174P1.000 HR174P1
26

tice Inspector General (IG) to report every six months on any violations of civil liberties. Four witnesses—the Honorable Glenn Fine, 

Inspector General of the Department of Justice; the Honorable 

Gregory G. Katsas, Deputy Assistant Attorney General, Civil Division of the Department of Justice; Mr. Barry Sabin, Chief of the 

Counterterrorism Section of the Criminal Division of the Department of Justice; and Ahilan Arulanantham, Staff Attorney for the 

American Civil Liberties Union of Southern California—testified. 

The hearing focused on section 805(a)(2)(B) of the USA PATRIOT 

Act as amended by section 6603 of the Intelligence Reform and Terrorism Prevention Act of 2004, which covers Material Support, and 

section 1001 of the USA PATRIOT Act, which requires the IG to 

report to the Congress ever six months on whether the IG has 

found any civil liberty violations. 

A. Section 1001 of the USA PATRIOT Act 

Section 1001 requires the Inspector General of the Department 

of Justice to submit a semiannual report. This section does not sunset, but does help the Committee understand the existence and extent of civil liberty abuses by the Department of Justice. Specifically, section 1001 directs the IG to investigate claims of civil 

rights or civil liberties violations allegedly committed by the Department of Justice. Since enactment of the USA PATRIOT Act, 

the IG has issued six semi-annual reports. In the sixth (and most 

recent) report, which was issued in March 2005, the IG had yet to 

find any violations under the USA PATRIOT Act. 

1. Background 

Section 1001 of the USA PATRIOT Act is based upon a proposal 

that emerged during consideration of anti-terrorism legislation by 

the House Judiciary Committee. The Committee report explains, 

‘‘In the wake of several significant incidents of security lapses and 

breach of regulations, there has arisen the need for independent 

oversight of the Federal Bureau of Investigation. Oversight of the 

Federal Bureau of Investigation is currently under the jurisdiction 

of the Department of Justice Office of Professional Responsibility. 

This section directs the Inspector General of the Department of 

Justice to appoint a Deputy Inspector General for Civil Rights, 

Civil Liberties. This section also directs the Deputy Inspector to review all information alleging abuses of civil rights, civil liberties, 

and racial and ethnic profiling by employees of the Department of 

Justice, which could include allegations of inappropriate profiling 

at the border,’’ H.Rept. 107–236, at 78. (2001). 

2. The Department of Justice Office of Inspector General 

The Office of the Inspector General (OIG) in the Department of 

Justice is an independent entity that reports to both the Attorney 

General and Congress. The OIG’s mission is to investigate allegations of waste, fraud, and abuse in DOJ programs and personnel 

and to promote economy and efficiency in DOJ operations. The OIG 

has jurisdiction to review programs and personnel in all DOJ components. Since its creation in 1989, the OIG has had the authority 

to conduct audits and inspections in all DOJ components and investigations of employee misconduct in all components except the FBI 

and the Drug Enforcement Agency (DEA). On July 11, 2001, the 

27

Attorney General expanded the OIG’s jurisdiction to include criminal and administrative investigations of FBI and DEA employees. 

3. Section 1001 

Section 1001 of the USA PATRIOT Act provides the following: 

The Inspector General of the Department of Justice shall designate one official who shall: 

(1) review information and receive complaints alleging abuses of 

civil rights and civil liberties by employees and officials of the Department of Justice; 

(2) make public through the Internet, radio, television, and newspaper advertisements information on the responsibilities and functions of, and how to contact, the official; and 

(3) submit to the Committee on the Judiciary of the House of 

Representatives and the Committee on the Judiciary of the Senate 

on a semi-annual basis a report on the implementation of this subsection and detailing any abuses described in paragraph (1), including a description of the use of funds appropriations used to carry 

out this subsection. 

To undertake the responsibilities designated to the OIG by section 1001, the OIG established the Special Operations Branch in its 

Investigations Division to help manage the OIG’s investigative responsibilities outlined in the USA PATRIOT Act. The Special Operations Branch receives civil rights and civil liberties complaints via 

mail, e-mail, telephone, and facsimile. Once a complaint is received, 

it is reviewed by the Investigative Specialist and ASAC responsible 

for USA PATRIOT Act complaints. After review, the complaint is 

entered into an OIG database and a decision is made concerning 

its disposition. The more serious civil rights and civil liberties allegations that relate to actions of a DOJ employee or contractor are 

assigned to an OIG Investigations Division field office for investigation. The OIG has approximately 120 series 1811 special agents 

who conduct investigations of criminal violations and administrative misconduct. Because of its limited resources, the OIG refers 

some complaints involving DOJ employees to internal affairs offices 

in DOJ components, such as the FBI and the Bureau of Prisons 

(BOP) for appropriate handling. Certain referrals require the component to report the results of their investigation to the OIG. In 

most cases, the OIG notifies the complainant of the referral. Complaints outside the OIG’s jurisdiction that identify a specific issue 

for investigation are forwarded to the appropriate investigative entity. 

In addition, the OIG has referred complainants to a variety of police department internal affairs offices. Since passage of the USA 

PATRIOT Act, the OIG also has been in close communication with 

the DOJ Civil Rights Division’s National Origin Working Group 

(NOWG) to Combat the (Post–9/11 Discriminatory Backlash). The 

NOWG regularly forwards complaints alleging civil rights and civil 

liberties abuses to the OIG for review. Many of the complaints forwarded by the NOWG are the result of media database searches. 

When an allegation received from any source involves a potential 

violation of Federal civil rights statutes by a DOJ employee, the 

complaint is discussed with the DOJ Civil Rights Division for prosecutorial review. In some cases, the Civil Rights Division accepts 

the case and requests additional investigation by either the OIG or 

28

31 Report to Congress on Implementation of Section 1001 of the USA PATRIOT Act (as required by Section 1001(3) of Public Law 107–56) (Mar. 2005), Office of the Inspector General, 

U.S. Dept. of Justice, available at http://www.usdoj.gov/oig/special/0503/index.htm. 32 Id. 

FBI. In other cases, the Civil Rights Division declines prosecution.31

4. Complaints Processed This Reporting Period 

From June 22, 2004, through December 31, 2004, the period covered by the sixth report, the OIG processed 1,943 complaints that 

were sent primarily to the OIG’s section 1001 e-mail or postal address. Of these complaints, 1,748 did not warrant further investigation or did not fall within the OIG’s jurisdiction. Approximately 

three-quarters of the 1,748 complaints made allegations that did 

not warrant an investigation. For example, some of the complaints 

alleged that Government agents were broadcasting signals that 

interfere with a person’s thoughts or dreams or that prison officials 

had laced the prison food with hallucinogenic drugs. The remaining 

one-quarter of the 1,748 complaints in this category involved allegations against agencies or entities outside of the DOJ, including 

other Federal agencies, local governments, or private businesses. 

The OIG referred those complaints to the appropriate entity or advised complainants of the entity with jurisdiction over their allegations. 

Consequently, 195 complaints involved DOJ employees or components and made allegations that required further review. Of those 

complaints, 170 raised management issues rather than alleged 

‘‘civil rights’’ or ‘‘civil liberties’’ abuses and were referred to DOJ 

components for handling. For example, inmates complained about 

the general conditions at Federal prisons, such as the poor quality 

of the food or the lack of hygiene products. Twelve of the 195 complaints did not provide sufficient detail to make a determination 

whether an abuse was alleged. The OIG requested further information but did not receive responses from any of these 12 complainants. Finally, the OIG requested that the BOP investigate one of 

the complaints and report to the OIG on the investigation’s findings. That complaint involved an inmate who complained that he 

was sexually harassed by a correctional officer. BOP’s investigation 

of the matter is ongoing. 

Therefore, after analyzing these 195 complaints, the OIG identified 12 matters that the OIG believed warranted opening a section 

1001 investigation or conducting a closer review to determine if 

section 1001–related abuse occurred. Of the 12 matters, the OIG 

retained one for investigation because the complainant made allegations of a potentially criminal nature. The OIG closed one because the allegations already had been addressed in a previous 

OIG investigation. The OIG referred the remaining ten matters, 

which appeared to raise largely administrative issues, to Department components for further investigation or review. For six of the 

ten matters, the OIG requested that the components report their 

findings to the IG. 

None of the complaints the OIG processed during this reporting 

period alleged misconduct by DOJ employees relating to the use of 

a provision in the USA PATRIOT Act.32 In addition, the IG has not 

substantiated claims of alleged misconduct resulting from the use 

29

33 An OIG investigation relating to Brandon Mayfield is still ongoing as of the date of this 

hearing. 34 Antiterrorism and Effective Death Penalty Act of 1996: A Summary, Charles Doyle, Senior 

Specialist, American Law Division, Congressional Research Service, June 1996). 35 Id. 

of a provision of the USA PATRIOT Act in any prior report, although one such allegation is still under review.33

B. Prohibition on Material Support to Terrorists 

1. The Antiterrorism and Effective Death Penalty Act of 

1996 

The USA PATRIOT Act did not create the prohibition on material support to terrorists and foreign terrorist organizations, but 

did amend that prohibition. It was the ‘‘Antiterrorism and Effective 

Death Penalty Act of 1996,’’ that created prohibitions to sever material support from international terrorists. The 1996 Act was in 

response to the Oklahoma City and first World Trade Center terrorist attacks. Subtitle A of Title III of the 1996 Act: (1) established 

the procedure under which a foreign organization may be designated as a terrorist organization; (2) proscribes providing such an 

organization with ‘‘material support;’’ and (3) established a system 

of civil penalties for banks and other financial institutions that fail 

to freeze and report the assets of such organizations. 34

Section 302 of the 1996 Act ‘‘established the procedure for designating as foreign terrorist organizations those foreign organizations 

that engage in terrorist activities that threaten the national defense, foreign relations, or economic interests of the United States 

or the security of U.S. nationals, 8 U.S.C. §1189. The designation 

by the Secretary of State lasts for up to two years with the possibility of a two-year renewal and may be withdrawn by the Secretary or by law. The designation is subject to judicial review on 

behalf of the designated organization if it is arbitrary, contrary to 

law, or in excess of authority. The Government may provide any 

supporting classified information to the court in secret. The designation may not be contested by a donor subsequently prosecuted 

for support nor by an alien excluded from the United States for association. Assets of a designated organization held by a financial 

institution may be frozen by order of the Secretary of the Treasury.’’ 35

Section 303 of the 1996 Act ‘‘outlaws providing support to a foreign terrorist organization, 18 U.S.C. §2339B. In addition to money 

and the instrumentalities of war, prohibited support extends to 

food, medical supplies, and any other physical asset except medicine itself and religious articles, 18 U.S.C. §2339A; 142 Cong.Rec. 

H3334 (daily ed. April 5, 1996). The fact that a particular contribution is made and used for humanitarian purposes is no defense 

since the gist of the offense is contributing to a tainted organization regardless of the purpose or use of the contribution. Violations 

are punishable by imprisonment for not more than 10 years and/

or a fine of not more than $250,000. Financial institutions that fail 

to report or comply with a freeze order are subject to civil penalties 

of up to the greater of twice the amount involved or $50,000. The 

30

36 Id. 

proscriptions apply both in the United States and to Americans 

and American institutions overseas.’’ 36

2. The 1998 Challenge to Material Support Prohibition

Led by the Humanitarian Law Project, six organizations 

and two individuals challenged the constitutionality of the 

law in 1998, contending that it violated the First Amendment. 

They argued, among other things, that the law infringed 

on their free-association rights, granted too much discretion to the secretary of state and prohibited their First 

Amendment right to seek and donate funds. 

A Federal district court rejected most of the First 

Amendment claims, but ruled the definition of the term 

‘‘material support’’ was vague enough to prevent the government from enforcing the law. 

On appeal, a three-judge panel of the 9th U.S. Circuit 

Court of Appeals agreed in Humanitarian Law Project v. 

Reno. Just as the lower court had, the appeals court cast 

aside most of the First Amendment arguments. 

The court rejected the free-association claim, finding 

that the statute does not prohibit membership in a group 

or support for the political goals of a group. ‘‘What [the 

law] prohibits is the act of giving material support, and 

there is no constitutional right to facilitate terrorism by 

giving terrorists the weapons and explosives with which to 

carry out their grisly missions,’’ the court wrote in its 

March 3 opinion. 

The plaintiffs contended that the law could be interpreted to prohibit the giving of material support to the socalled terrorist groups’ nonviolent humanitarian and political activities. 

However, the 9th Circuit determined that the First 

Amendment did not protect the right to give funds to terrorist groups. These ‘‘terrorist groups do not maintain open 

books,’’ the court wrote. ‘‘Therefore, when someone makes 

a donation to them, there is no way to tell how the donation is used.’’ 

The appeals court distinguished between giving material 

support to a group and advocating the beliefs and ideas of 

a group. ‘‘Advocacy is far different from making donations 

of material support,’’ the court wrote. 

The appeals court also dismissed the plaintiffs’ argument that the statute had empowered the secretary of 

state with ‘‘unfettered discretion’’ to determine whether a 

group is a terrorist organization. 

The 9th Circuit pointed out that the secretary of state 

can only designate a group as a terrorist group if he or she 

has ‘‘reasonable grounds to believe that an organization 

has engaged in terrorist acts.’’ 

However, the appeals court agreed with the plaintiffs 

and the lower court that some of the law’s language was 

too vague. 

31

37Federal appeals panel finds anti-terrorism law unconstitutionally vague, David Hudson, 

First Amendment Center research attorney, (April 8, 2000). [emphasis added]. 

The law defined ‘‘material support’’ as:

Currency or other financial securities, financial services, 

lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, 

lethal substances, explosives, personnel, transportation 

and other physical assets, except medicine or religion.

The court focused on the terms ‘‘training’’ and ‘‘personnel,’’ finding that these terms ‘‘blur[red] the line between protected expression and unprotected conduct.’’ 

‘‘Someone who advocates the cause of * * * [a terrorist 

organization] * * * could be seen as supplying them with 

personnel,’’ the court wrote. 

The appeals court also had trouble with the word ‘‘training.’’ ‘‘For example, a plaintiff who wishes to instruct members of a designated group on how to petition the United 

Nations to give aid to their group could plausibly decide 

that such protected expression falls within the scope of the 

term ‘training.’ ’’ For these reasons, the court ruled that 

the lower court did not ‘‘abuse its discretion’’ in issuing a 

preliminary injunction.37

3. USA PATRIOT Act Amends the Material Support 

Provision 

Section 805(a)(2)(B) of the USA PATRIOT Act added the 

phrase ‘‘expert advice or assistance’’ to the types of material support to terrorists that is banned by the criminal 

law. Title 18 U.S.C. § 2339A prohibited providing material 

support or resources to terrorists prior to enactment of the 

USA PATRIOT Act. Prohibition on expert advice or assistance also applies to 18 U.S.C. § 2339B’s prohibition of material support to FTOs. The existing definition of ‘‘material 

support or resources’’ was not broad enough to encompass 

expert services and assistance—for example, advice provided by a person with expertise in aviation matters to facilitate an aircraft hijacking, or advice provided by an accountant to facilitate the concealment of funds used to support terrorist activities. This section accordingly amended 

18 U.S.C. § 2339A to include expert services and assistance, making the offense applicable to experts who provide 

services or assistance knowing or intending that the services or assistance is to be used in preparing for or carrying 

out terrorism crimes. This also applies to 18 U.S.C. 

§ 2339B. 

4. Challenges to the USA PATRIOT Act Prohibition 

of Material Support to Terrorists 

a. December 3, 2003 9th Circuit Decision

LOS ANGELES—Civil rights lawyers filed a free-speech 

challenge . . . to a section of the USA Patriot Act that 

makes it illegal to provide ‘‘expert advice and assistance’’ 

to groups with alleged links to terrorists. 

32

38Patriot Act dealt blow by federal judge, The Associated Press, January 26, 2004.

The ban is unconstitutionally vague and should be 

struck down, the New York-based Center for Constitutional Right argued in a motion filed in Federal court. 

The motion was included in the center’s current lawsuit, 

Humanitarian Law Project v. Ashcroft, which challenges a 

1996 law that makes it a crime to provide material support to any group designated a foreign terrorist organization. Federal courts have already struck down portions of 

that law that barred providing personnel or training to terrorist groups, saying the provisions were unconstitutionally vague. 

The Patriot Act, passed after the Sept. 11, 2001, terrorist attacks, amended the definition of material support 

to include ‘‘expert advice and assistance.’’ 

The plaintiffs say they want to provide support for lawful, nonviolent activities by two groups designated as foreign terrorist organizations: the Kurdistan Workers’ Party 

in Turkey and the Liberation Tigers of Tamil Eelam in Sri 

Lanka. 

One of the plaintiffs, Dr. Nagalingam Jeyalangim, would 

like to work as a doctor in his war-torn homeland of Sri 

Lanka. However, because some hospitals are controlled by 

rebel forces there, he fears he could be prosecuted for ‘‘providing material support’’ to a terrorist group, according to 

the filing. 

* * * * * * * 38

b. The 9th U.S. Circuit Court of Appeals Overturns Circuit’s 

Ruling That the 1996 Terror Financing Law Was Unconstitutional

A Federal appeals court reinstated indictments against 

seven Los Angeles residents accused of raising money for 

a terror organization with links to ousted Iraqi ruler Saddam Hussein. In a victory for the Bush administration’s 

war on terror, the 9th U.S. Circuit Court of Appeals yesterday reversed a Los Angeles Federal judge who declared 

the 1996 terror financing law unconstitutional. 

The law makes it illegal to funnel money—‘‘material 

support’’—to organizations the State Department says are 

linked to terrorism, about 30 groups in all. 

Before the Sept. 11, 2001, attacks, the government rarely used the terror law. Subsequently the administration 

has used the law to win dozens of terror convictions nationwide, from Lackawanna, N.Y., to Seattle to Portland, 

Ore. 

* * * * * * *

The case stems from a 2001 indictment against the 

seven defendants for allegedly providing several hundred 

thousand dollars to the Mujahedin-e Khalq, which the appeals court said ‘‘participated in various terrorist activities 

against the Iranian regime’’ and ‘‘carried out terrorist activities with the support of Saddam Hussein’s regime.’’ 

33

39 9th Circuit reinstates terror indictments, the Associated Press, December 21, 2004.

U.S. District Judge Robert Takasugi had invalidated the 

law, saying it did not provide the groups a proper forum 

to contest their terror designations. 

But a three-judge panel of the San Francisco-based Federal appeals court overruled that decision and went a step 

further, saying individuals accused of supporting the listed 

groups cannot challenge whether the groups should be listed. 

The government, the court said, must prove the ‘‘fact 

that a particular organization was designated at the time 

the material support was given, not whether the government made a correct designation.’’ 

The 9th Circuit decision mirrors a ruling this year by 

the 4th U.S. Circuit Court of Appeals in Richmond, Va., 

upholding the conviction of a man who funneled money to 

the militant Hezbollah organization while insisting he had 

a right to challenge that group’s listing. 

‘‘The Justice Department is pleased that yet another 

court has upheld the constitutionality of the material-support statute, a key weapon in our arsenal of legal remedies 

in the war on terror,’’ spokesman John Nowacki said. 

‘‘Stopping the flow of money and other resources to terrorists is critical to our success, and the department will continue to pursue those who provide material support for terrorist objectives.’’ 

The seven Los Angeles defendants said it violated their 

First Amendment rights to be prohibited from contributing 

money to groups they say are not terror organizations. 

They said they should be afforded the right to prove that 

the group in question should not be on the State Department’s list. 

Writing for the majority, Judge Andrew J. Kleinfeld said 

the First Amendment did not protect unlimited speech, 

and even allowed limits on campaign contributions. 

‘‘It would be anomalous indeed if Congress could prohibit 

the contribution of money for television commercials saying why a candidate would be a good or bad choice for political office, yet could not prohibit contribution of money 

to a group designated a terrorist organization,’’ Kleinfeld 

wrote. 

* * * * * * *

According to the indictment, the Los Angeles defendants 

solicited donations at the Los Angeles International Airport and wired money to a Mujahedin-e Khalq bank account in Turkey. The group had tried unsuccessfully to get 

removed from the terror list. 

No court date has been set for the seven.39

5. Intelligence Reform and Terrorism Prevention Act of 2004 

Section 6603 of the Intelligence Reform and Terrorism Prevention Act of 2004 adds a new crime of material support for terrorism 

for knowingly receiving military training from a foreign terrorist 

organization. The section requires that any person charged under 

34

40See Humanitarian Law Project v. United States Department of Justice, 352 F.3d 382 (9th 

Cir. 2003). 41 Humanitarian Law Project v. Ashcroft, 2004 WL 112760 (C.D. Cal. Jan. 22, 2004). 

this section must have knowledge that the organization is a terrorist organization. It also defines the term ‘‘military-type training.’’ Section 6603 also expands the crime of material support to 

terrorists to include any act of international or domestic terrorism. 

Section 6603(c) specifies that any person charged under this section must have knowledge that the organization is a terrorist organization. It also more clearly defines the term ‘‘material support.’’ 

The Intelligence Reform and Terrorism Prevention Act of 2004 attempted to address the court cases finding the terms ‘‘training’’ and 

‘‘personnel’’ under the prohibition unconstitutionally vague,40 and 

the term ‘‘expert advice or assistance’’ in material support statute 

unconstitutionally vague.41

The Intelligence Reform and Terrorism Prevention Act provides 

more detailed definitions of the terms ‘‘training,’’ and ‘‘expert advice or assistance’’ under section 6603(b); and ‘‘personnel’’ under 

section 6603(f) by creating new section 3229B(a)(1)(h) of title 18 

that limits the term ‘‘personnel.’’ • To address the Ninth Circuit’s concern that the term 

‘‘training’’ is vague and may cover protected First Amendment 

activity, the Act provides that training includes only instruction or teaching designed to impart a specific skill. This definition addresses the Ninth Circuit’s concern that the material 

support statute could cover imparting general knowledge to a 

terrorist organization (such as knowledge about international 

law). It also addresses the Ninth Circuit’s concern that the 

term ‘‘training’’ could cover First Amendment protected activity 

by specifically stating that the statute does not cover such activity. • To address the Ninth Circuit’s concern that the term ‘‘personnel’’ is unconstitutionally vague and could be interpreted to 

cover those independently advocating on behalf of a foreign terrorist organization, the legislation provides that the term ‘‘personnel’’ only refers to those either: (1) working under a terrorist organization’s direction or control; or (2) managing or supervising the terrorist organization. This definition makes it 

clear that those independently advocating on behalf of a foreign terrorist organization’s goals are not covered by the material support statute. 

• To address the Ninth Circuit’s concern that the term ‘‘expert advice or assistance’’ is vague, the legislation provides 

that ‘‘expert advice or assistance’’ means advice derived from 

scientific, technical, or other specialized knowledge. This definition is taken from the definition of expertise found in the 

Federal Rules of Evidence. It is well-known and well-understood by lawyers and courts. The proposal also addresses the 

Ninth Circuit’s concern that the term ‘‘expert advice or assistance’’ could cover First Amendment protected activity by specifically stating that this language does not cover such activity. 

Section 6603(f) contains an exception that ‘‘no person may be 

prosecuted under this section in connection with the term ‘personnel,’ ‘training,’ or ‘expert advice or assistance’ if the provision of 

that material support or resources to a foreign terrorist organizaVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00038 Fmt 6659 Sfmt 6602 E:\HR\OC\HR174P1.000 HR174P1
35

tion was approved by the Secretary of State with the concurrence 

of the Attorney General.’’ 

Section 6603(g) also provides that section 6603 sunsets on December 31, 2006. 

6. 9th Circuit Lifts 2002 Injunction Protecting Donors to Terrorist Organizations

A Federal appeals court yesterday lifted an injunction 

that had barred the government from prosecuting a Los 

Angeles group if it aids organizations labeled as supporting terrorism. 

The decision by the 9th U.S. Circuit Court of Appeals 

came days after President Bush signed legislation overhauling U.S. intelligence gathering and terror-enforcement 

rules. The San Francisco-based court said yesterday’s decision in Humanitarian Law Project v. Dept. of Justice was 

based partly on the Intelligence Reform and Terrorism 

Prevention Act of 2004, which Bush signed into law on 

Dec. 17. 

The appeals court, however, did not comment on whether the Humanitarian Law Project could ever be prosecuted 

if it provided advice to the Kurdistan Workers’ Party or 

the Tamil Tigers Eelam in Sri Lanka. 

The 11-judge panel of the 9th Circuit sent the case back 

to the lower courts, where the Humanitarian Law Project 

is expected to challenge the new provisions. 

‘‘The end goal is to get another injunction,’’ said David 

Cole, a Georgetown University School of Law scholar who 

won the 2002 injunction on behalf of the Humanitarian 

Law Project. 

Cole said the group would abide by the court’s order. 

The State Department lists the Sri Lanka and Turkey 

groups as terror organizations. That makes it illegal for 

those in the United States to provide financial assistance 

under a 1996 law created in the aftermath of the attack 

on the Oklahoma City Federal building. 

The Humanitarian Law Project was not seeking to give 

money. Rather, it wanted to donate personnel and training 

time to teach the groups about human rights and peacemaking, according to court documents. 

The humanitarian group had provided human rights 

support to the Kurdistan party for years before the party 

was declared a terror organization by the United States. 

The humanitarian group challenged the 1996 law in Los 

Angeles Federal court a year later, Cole said. 

The group sought the injunction because it feared its 

members might be prosecuted and imprisoned for up to 15 

years. 

Before the Sept. 11, 2001, attacks, the government rarely used the terror law. The administration subsequently 

has employed it to win dozens of terror convictions nationwide, from Lackawanna, N.Y., to Seattle and Portland, 

Ore. 

In 2003, the 9th Circuit said the Humanitarian Law 

Project could donate human rights and peacemaking servVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00039 Fmt 6659 Sfmt 6969 E:\HR\OC\HR174P1.000 HR174P1
36

42 9th Circuit lifts injunction protecting donors, the Associated Press, December 22, 2004.

ices because the law did not specifically outlaw such assistance. . . . 

The legislation, which creates a national intelligence 

center and the position of national intelligence director, 

makes it illegal to assist the roughly 30 organizations the 

State Department says are linked to terrorism. 

The new law virtually outlaws any form of assistance, financial or not. 

* * * * * * *

Yesterday’s decision comes a day after a different panel 

of the 9th Circuit reinstated the indictments against seven 

Los Angeles residents accused of raising money for a terror 

organization with links to ousted Iraqi ruler Saddam Hussein. 

The group claimed they had a right to challenge whether 

the terror group they were funding—Mujahedin-e Khalq—

should be on the terror list. The appeals court said the 

government must prove the ‘‘fact that a particular organization was designated at the time the material support 

was given, not whether the government made a correct 

designation.’’ 42

9. May 26, 2005, Oversight Hearing on Material Witness Provisions 

of the Criminal Code and the Sections 505 and 804 of the USA 

PATRIOT Act 

On Thursday, May 26, 2005, the Subcommittee on Crime, Terrorism, and Homeland Security for the Committee on the Judiciary 

held a hearing on material witness provisions of the criminal code 

and sections 505 (related to National Security Letters) and 804 (related to jurisdiction over crimes committed at U.S. facilities abroad) 

of the USA PATRIOT Act. The Subcommittee heard testimony from 

four witnesses—Chuck Rosenberg, Chief of Staff to the Deputy Attorney General of the Department of Justice; Matthew Berry, 

Counselor to the Assistant Attorney General of the Department of 

Justice; and two witnesses for the minority: Gregory Nojeim, Acting Director of the Washington Legislative Office of the American 

Civil Liberties Union; and Shayana Kadidal, Staff Attorney, Center 

for Constitutional Rights. 

A. National Security Letters 

1. What Is a National Security Letter?

A National Security Letter (NSL) is an administrative subpoena 

that can be used in international counterterrorism or foreign counterintelligence investigations. An administrative subpoena is an investigative tool that allows the FBI to request (compliance varies, 

see examples) document production or testimony without prior approval from a grand jury, court, or other judicial entity. Congress 

grants the administrative subpoena power of executive branch entities as well as the scope and exercise of these authorities. 

37

2. Types of National Security Letters

A NSL can be used under the following circumstances and authorities: • 18 U.S.C. § 2709, the Electronic Communications Privacy 

Act (ECPA), authorizes the FBI to issue NSLs for: (1) telephone subscriber information (limited to name, address, and 

length of service); (2) telephone local and long distance toll billing records; and (3) electronic communication transactional 

records. • 12 U.S.C. § 3414(a)(5), the Right to Financial Privacy Act 

(RFPA), authorizes the FBI to issue NSLs to obtain financial 

records from banks and other financial institutions. • 15 U.S.C. § 1681u, the Fair Credit Reporting Act (FCRA), 

authorizes the FBI to issue NSLs to obtain consumer identifying information and the identity of financial institutions from 

credit bureaus. • 15 U.S.C. § 1681v, Disclosures to governmental agencies 

for counterterrorism purposes, authorizes the FBI and other 

agencies to obtain credit reports. • 50 U.S.C. § 436, Requests by authorized investigate agencies, authorizes the FBI and other agencies to obtain financial 

records. 

3. When Can NSLs Be Issued?

In addition to the statutory authority set forth above, when an 

NSL can be issued or used is governed by the applicable Attorney 

General Guidelines for FBI National Security Investigations and 

Foreign Intelligence Collection. NSLs are used in international 

counterterrorism or foreign counterintelligence investigations. However, this authority is limited further: NSLs issued under 15 U.S.C. 

§ 1681v (credit reports) can only be issued in counterterrorism 

cases; credit reports cannot be obtained for a foreign counterintelligence investigation under this section. 

NSLs cannot be used in criminal investigations unrelated to 

international terrorism or clandestine intelligence activities. Furthermore, both Executive Order 12333 and the FBI require that 

the FBI accomplish these investigations by the ‘‘least intrusive’’ 

means. 

4. Recent Legislative Changes to NSL Authority 

P.L. 107–56, the ‘‘USA PATRIOT Act,’’ simplified the NSL 

process. Prior to the Act, an FBI official authorizing the 

issuance of an NSL had to certify that there were specific and 

articulable facts that provide a reason to believe that the information sought pertains to a foreign power, or an agent of a foreign power. The USA PATRIOT Act changed this to allow for 

certification that the NSL is sought for a foreign counterintelligence purpose to protect against international terrorism and 

clandestine intelligence activities. 

This is consistent with the Supreme Court’s rulings on the 

issuance and purpose of administrative subpoenas. Previously the 

signature of a high-ranking official at FBI headquarters was required to issue an NSL and the process often took months. In many 

cases, counterintelligence and counterterrorism investigations suffered substantial delays while waiting for NSLs to be prepared, reVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00041 Fmt 6659 Sfmt 6602 E:\HR\OC\HR174P1.000 HR174P1
38

43 Report to Congress on the Use of Administrative Subpoena Authority by Executive Branch 

Agencies and Entities, Pursuant to Pub. L. No. 106–544, Section 7, n. 8, p. 7. 44 Report to Congress on the Use of Administrative Subpoena Authority by Executive Branch 

Agencies and Entities, Pursuant to Pub. L. No. 106–544, Section 7, p. 8. 

turned from headquarters, and served. The Act streamlines the 

process for obtaining NSL authority by allowing the Director to 

designate an individual at Headquarters, not lower than Deputy 

Assistant Director, or to designate a Special Agent in Charge in a 

Bureau field office, to authorize an NSL. 

The Supreme Court has construed administrative authorities, broadly holding that the ‘‘government need only show that 

the subpoena was issued for a lawfully authorized purpose and 

sought information relevant to the agency’s inquiry,’’ United 

States v. LaSalle Nat’l Bank, 437 U.S. 298, 313 (1978); United 

States v. Powell, 379 U.S. 48, 56 (1964); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209 (1946).43

‘‘The Supreme Court has stated in United States v. Morton 

Salt[, 338 U.S. 632, 652 (1950)] that, in evaluating the appropriateness of an administrative subpoena request, a court must 

simply determine that ‘the inquiry is within the authority of 

the agency, the demand is not too indefinite and the information sought is reasonably relevant.’ ’’ 44

• P.L. 108–177, the ‘‘Intelligence Authorization Act for FY 

2004,’’ amended the Right to Financial Privacy Act (RFPA) (12 

U.S.C. § 3401). The Intelligence Authorization Act changed the 

definition of ‘‘financial institution’’ for NSLs to be consistent 

with the definition of ‘‘financial institution’’ used for money 

laundering under 31 U.S.C. § 5312(a)(2). The old definition 

used for NSLs defined ‘‘financial institution’’ to cover any office 

of a (1) bank; (2) savings bank; (3) card issuer as defined in 

section 1602(n) of title 15; (4) industrial loan company; (5) 

trust company; (6) savings association; (7) building and loan, or 

homestead association (including cooperative banks); (8) credit 

union, or consumer finance institution. 

The money laundering definition under 31 U.S.C. 

§ 5312(a)(2), now applied to NSLs, covers: (1) An insured bank 

(as defined in section 3(h) of the Federal Deposit Insurance Act 

(12 U.S.C. § 1813(h))); (2) a commercial bank or trust company; 

(3) a private banker; (4) an agency or branch of a foreign bank 

in the U.S.; (5) a credit union; (6) a thrift institution; (7) a 

broker or dealer registered with the Security and Exchange 

Commission under the Security Exchange Act of 1934 (15 

U.S.C. § 78 et seq.); (8) a broker or dealer in securities or commodities; (9) an investment banker or investment company; 

(10) a currency exchange; (11) an issuer, redeemer, or cashier 

of travelers’ checks, checks, money orders, or similar instruments; (12) an operator of a credit card system; (13) an insurance company; (14) a dealer in precious metals, stones, or jewels; (15) a pawnbroker; (16) a loan or finance company; (17) a 

travel agency; (18) a licensed sender of money or any other person engaged in the transmission of funds; (19) a telegraph company; (20) a business engaged in vehicle sales, including automobile, airplane, and boat sales; (21) persons involved in real 

estate closings and settlements; (22) the U.S. Postal Service; 

(23) an agency of the United States Government or state or 

39

local government carrying out a duty or power of a business 

described in this paragraph; (24) a casino, gambling casino, or 

gaming establishment with an annual gaming revenue of more 

than 1 million; (25) any business or agency that engages in any 

activity that the Secretary of the Treasury determines, by regulation, to be an activity which is similar to, related to, or a 

substitute for, any activity in which any business described in 

this paragraph is authorized to engage; or (26) any other business designed by the Secretary whose case transactions have 

a high degree of usefulness in criminal, tax, or regulatory matters. • It should be noted that under the money laundering provision, the Treasury Department also can use an administrative 

subpoena to get certain information. See 31 U.S.C. § 5318(a)(4). 

Moreover, the FBI would usually use a grand jury subpoena 

(no court needed) to obtain certain information. Finally, the 

provisions in the Intelligence Authorization Act of 2004, Pub. 

L. No. 108–177, do not change the USA PATRIOT Act. 

5. Previously Proposed Changes to NSLs

• H.R. 3179, the ‘‘Anti-Terrorism Intelligence Tools Improvement Act of 2003,’’ (9/25/04) introduced by Representatives 

Sensenbrenner and Goss in the 108th Congress: The bill would 

have established a penalty for an individual to disclose that he 

or she has received a request for information under an NSL 

and would have authorized the Attorney General to seek judicial enforcement against those refusing to comply with an 

NSL. • Under current law, a person is generally prohibited from 

disclosing that he has received a request for information under 

an NSL. H.R. 3179 would have added a penalty for such a disclosure, making it a misdemeanor, unless the disclosure was 

intended to obstruct a terrorism or espionage investigation, 

then such a disclosure would be subject to imprisonment for 

not more than five years. 

• Currently, no judicial enforcement procedures exist when 

a recipient of an NSL refuses to comply. H.R. 3179 would have 

authorized the Attorney General to seek judicial enforcement 

in NSL cases. 

• Statutes granting administrative subpoena authorities 

usually fall into three enforcement type-categories: (1) the statute authorizes an agency to apply directly to an appropriate 

U.S. District Court for enforcement assistance; (2) the statute 

requires the agency official to request the Attorney General’s 

aid in applying to a U.S. District Court for enforcement assistance; or (3) the statute contains no identified enforcement 

mechanism. Some of the statutes granting authority for issuing 

NSLs contain no enforcement mechanisms. 

6. Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004) 

In September 2004, the United States District Court for the 

Southern District of New York struck down 18 U.S.C. § 2709, the 

statute authorizing ‘‘national security letters,’’ or NSLs, for customer records from Internet, telephone, and other electronic service 

providers.

40

45Doyle, Charles, Congressional Research Service RL32880, Administrative Subpoenas and 

National Security Letters in Criminal and Foreign Intelligence Investigations: Background and 

Proposed Adjustments Administrative Subpoenas and National Security Letters in Criminal and 

Foreign Intelligence Investigations: Background and Proposed Adjustments. P. 24–25 (April 15, 

2005). 

In Doe v. Ashcroft, the court found that the language of 18 

U.S.C. 2709 and the practices surrounding its use offended (1) the 

Fourth Amendment because ‘‘in all but the exceptional case it has 

the effect of authorizing coercive searches effectively immune from 

any judicial process,’’ 334 F.Supp.2d at 506, and (2) the First 

Amendment because its sweeping, permanent gag order provision 

applies ‘‘in every case, to every person, in perpetuity, with no vehicle for the ban to ever be lifted from the recipient or other persons 

affected under any circumstances, either by the FBI itself, or pursuant to judicial process,’’ id. at 476. The court concluded that the 

national security letters before it differed from administrative subpoenas by want of judicial review either before or after ‘‘the seizure’’:

While the Fourth Amendment reasonableness standard 

is permissive in the context of the administrative subpoenas, the constitutionality of the administrative subpoena is predicated on the availability of a neutral tribunal to determine, after a subpoena issued, whether the 

subpoena actually complies with the Fourth Amendment’s 

demands. In contrast to an actual physical search, which 

must be justified by the warrant and probable cause requirements occurring before the search, an administrative 

subpoena ‘‘is regulated by and its justification derives 

from, [judicial] process’’ available after the subpoena is 

issued. 

Accordingly, the Supreme Court has held that an administrative subpoena ‘‘may not be made and enforced’’ by the 

administrative agency; rather, the subpoenaed party must 

be able to ‘‘obtain judicial review of the reasonableness of 

the demand prior to suffering penalties for refusing to 

comply.’’ In sum, longstanding Supreme Court doctrine 

makes clear that an administrative subpoena statute is 

consistent with the Fourth Amendment when it is subject 

to ‘‘judicial supervision’’ and ‘‘surrounded by every safeguard of judicial restraint.’’ 334 F.Supp.2d at 495, quoting 

inter alia, Oklahoma Press Pub. Co. v. Walling, 327 U.S. 

at 217; See v. City of Seattle, 387 U.S. 541, 544–45 (1967). 

By way of emphasizing the troubling sweep of the nondisclosure ban found in 18 U.S.C. 2709(c), the court pointed to legislative proposals in the 108th Congress that 

might serve as one of several possible models for a more 

narrowly tailored means of protecting the legitimate governmental interests upon which section 2709 rests.45

7. Doe v. Ashcroft and H.R. 3179, ‘‘The Anti-Terrorism Intelligence Tools Improvement Act of 2003’’ 

In the 108th Congress, Chairman Sensenbrenner introduced H.R. 

3179, in part to address the fact that some NSL had explicit enforcement mechanisms and others did not. The Court in Doe v. 

Ashcroft concluded that there were three problems with NSLs: 1) 

41

46Doe v. Ashcroft, 334 F. Supp. 2d 471, 493 (S.D.N.Y. 2004). 47Doyle, Charles, Congressional Research Service RS21306, Terrorism and Extraterritorial 

Jurisdiction in Criminal Cases: Recent Developments in Brief. P. 1 (Sept 6, 2002). 48Doyle, Charles, Congressional Research Service RS21306, Terrorism and Extraterritorial 

Jurisdiction in Criminal Cases: Recent Developments in Brief. P. 1 (Sept 6, 2002). 

the statute did not clarify whether consulting an attorney would 

violate the prohibition on disclosure under the law, 2) the statute 

contained no explicit provision for the Government to seek judicial 

enforcement, and 3) there was no provision imposing penalties 

against a person who fails to comply with an NSL. The Court found 

that ‘‘H.R. 3179 would have addressed two of the issues listed 

above by explicitly providing for judicial enforcement of NSLs and 

by imposing penalties of up to five years’ imprisonment for persons 

who unlawfully disclose that they have received an NSL.’’ 46

B. Extraterritorial Jurisdiction

1. What Is Extraterritorial Jurisdiction 

Extraterritorial jurisdiction occurs when Federal law applies 

overseas to U.S. citizens and U.S. foreign nationals when there is 

some nexus to the United States, according to the Congressional 

Research Service.

The Constitution does not forbid either Congressional or 

state enactment of laws which apply outside the United 

States. Nor does it prohibit either the Federal government 

or the states from enforcing American law abroad. In fact, 

several passages suggest that the Constitution contemplates the application of American law beyond the geographical confines of the United States.47 It speaks of 

‘‘felonies on the high seas,’’ ‘‘offences against the law of nations,’’ ‘‘commerce with foreign nations,’’ and of the impact 

of treaties. 

The Constitution provides the power to enact criminal 

laws with extraterritorial application. It vests Congress 

with, among other things, the power ‘‘to regulate commerce with foreign nations * * * to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations * * *’’ and gives Congress legislative jurisdiction over places acquired ‘‘for the 

erection of forts, magazines, arsenals, dock- years, and 

other needful buildings.’’ 

The Constitution also limits the manner in which this 

authority may be exercised. The due process clause of the 

Fifth Amendment, for instance, bars the extraterritorial 

application of Federal criminal laws in the absence of a 

connection between the crime, the defendant, and the 

United States. Prosecution requires personal jurisdiction 

over the defendant and subject matter jurisdiction over the 

crime. * * *.48

2. The Military Extraterritorial Jurisdiction Act of 2000 

The Military Extraterritorial Jurisdiction Act covers felonies, 

committed anywhere overseas, by members of the armed forces or 

those accompanying or employed by the Department of Defense, as 

if they were committed within the territorial jurisdiction of the 

42

49 Id. At 3. 50 Id. 

United States, 18 U.S.C. § 3261.49 While the Military 

Extraterritorial Jurisdiction Act extended Federal criminal jurisdiction to Defense Department employees and contractors outside the 

U.S., it does not cover contractors working for other agencies. Section 804 of the USA PATRIOT Act closed this loophole. 

3. Section 804 of the USA PATRIOT Act 

According to the Congressional Research Service:

[The USA] PATRIOT Act addressed a split in the circuit 

courts of appeals over whether the Federal laws that outlaw such crimes as murder, rape, and robbery when committed within Federal enclaves in this country also apply 

on American governmental installations abroad. With the 

enactment of section 804, they do; at least when either the 

victim or the offender is a U.S. national. Prior to the PATRIOT Act, the dispute centered on the construction of 18 

U.S.C. 7(3) which defines the special territorial jurisdiction 

of the United States. The Fourth and Ninth Circuits held 

that the definition in subsection 7(3) includes areas in 

other countries over which the host nation has afforded 

the United States privileges akin to sovereignty. The Second Circuit held that the subsection is intended to encompass only those areas over which Congress may exercise 

legislative jurisdiction of the kind ordinarily vested in the 

Several States. 

Congress resolved the dispute, or at least greatly mitigated its consequences, when it enacted section 804 of the 

USA PATRIOT Act and the Military Extraterritorial Jurisdiction Act of 2000. The Military Extraterritorial Jurisdiction Act treats felonies, committed anywhere overseas by 

members of the armed forces or those accompanying or 

employed by them, as if they were committed within the 

territorial jurisdiction of the United States, 18 U.S.C. 

3261. Section 804 of the USA PATRIOT Act creates a new 

territorial subsection in 18 U.S.C. 7: the special territorial 

jurisdiction of the United States includes the overseas 

business premises of Federal governmental entities and 

the residences of the members of their staffs, but only for 

crimes committed by or against Americans (other than 

those who come within the military extension of 18 U.S.C. 

3261). The split in the circuits remains of consequence for 

crimes committed in Federal overseas facilities by foreign 

nationals who are not associated with the U.S. armed 

forces. In the Fourth and Ninth Circuits, such crimes may 

come within the territorial jurisdiction of the United 

States. In the Second Circuit, they do not.50

C. Material Witness Law

Title 18 U.S.C. § 3144 provides that if ‘‘it appears from an affidavit filed by a party that the testimony of a person is material in 

a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a juVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00046 Fmt 6659 Sfmt 6602 E:\HR\OC\HR174P1.000 HR174P1
43

51 U.S. Senate Judiciary Committee Hearing ‘‘Terrorism Prevention Laws’’ October 21, 2003, 

p 15. 

dicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 2142 of this title. 

No material witness may be detained because of inability to comply 

with any condition of release if the testimony of such witness can 

adequately be secured by deposition, and if further detention is not 

necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules 

of Criminal Procedure.’’ The material witness statute is available 

to both the Government and the defense to assure testimony in 

criminal trials in the interest of justice. 

The statute specifically limits this authority: no material witness 

may be detained if: (1) the witness’ testimony can be adequately secured by deposition; and (2) further detention is not necessary to 

prevent a failure of justice. However, release may be delayed for a 

reasonable amount of time until the material witness’ deposition 

can be taken. 

C. Oversight in the 107th and 108th Congress of the USA PATRIOT Act

Due to the concerns that these new authorities could lead to civil 

liberties violations, Congress included reporting requirements and 

a sunset provision. Authorities under sections 201, 202, 203(b) and 

(d), 204, 206, 207, 209, 212, 214, 215, 217, 218, 220, 223 and 225 

of the USA PATRIOT Act (Pub. L. No. 107–296) expire this year 

on December 31, 2005. 

1. IG Report Under Section 1001 of the USA PATRIOT Act 

The USA PATRIOT Act contains reporting requirements to facilitate ongoing Congressional oversight of the Department of Justice 

and the implementation of the Act. Section 1001 of the USA PATRIOT Act requires the Inspector General of the Department of 

Justice to report to the House and Senate Committees on the Judiciary on a semi-annual basis on any complaints of civil liberties 

abuses by the Department of Justice. In accordance with Section 

1001, the Department of Justice has sent six reports entitled, ‘‘Report to Congress on the implementation of Section 1001 of the USA 

PATRIOT Act.’’ 

2. No Evidence of Civil Liberty Violations Has Been Presented to Congress 

Democrat Senator Dianne Feinstein acknowledged the many misconceptions surrounding the USA PATRIOT Act at the Senate Judiciary Committee’s hearing on October 21, 2003, regarding Terrorism Prevention Laws.51 Senator Feinstein noted that despite the 

fact that 34 states have passed resolutions or ordinances against 

the USA PATRIOT Act mostly due to perceived civil rights concerns-she has never had a single abuse of the USA PATRIOT Act 

reported to her. She stated, ‘‘There is a lot of public uncertainty 

about this bill.’’ She went on to note: ‘‘I find it interesting that, of 

the 21,000 comments I’ve received * * * to have half really against 

a bill that has never come to the Hill is interesting. And to have 

44

52 Id. 53 April 26, 2005, Letter to the Honorable Diane Feinstein from William E. Moschella. 54 June 13, 2002, Letter to the Attorney General from F. James Sensenbrenner, Jr., and John 

Conyers, Jr., requesting responses to 50 questions regarding the implementation of the PATRIOT Act. 55 July 26, 2002, Responses from Daniel J. Bryant to F. James Sensenbrenner, Jr., and John 

Conyers, Jr., to 28 of the 50 questions submitted to the Department of Justice on June 13, 2002. 56 August 26, 2002, Responses from Daniel J. Bryant to F. James Sensenbrenner, Jr., and 

John Conyers, Jr., to the remaining questions (six of the responses being sent to the House Permanent Select Committee on Intelligence) submitted to the Department of Justice on June 13, 

2002. 57September 20, 2002, Additional information from Daniel J. Bryant to F. James Sensenbrenner, Jr., and John Conyers, Jr., regarding the Department’s responses to questions submitted to the Department of Justice on June 13, 2002.

a substantial number relate to the National Entry-Exit Registration System, which is not part of the bill, is also interesting. Now 

what I had deduced from this is that there are substantial uncertainty—perhaps some ignorance—about what this bill actually does 

do’’ 52 This is interesting but understandable, given that every legislative attempt to improve national security is labeled ‘‘PATRIOT 

II’’ by groups opposed to the USA PATRIOT Act. 

Senator Feinstein, moreover, has continued to request information from the Department of Justice on whether violations have occurred. An April 26, 2005 letter responds:

In a letter dated April 4, 2005, the American Civil Liberties Union (‘‘ACLU’’) responded to your March 25 request for information regarding alleged ‘‘abuses’’ of the 

USA PATRIOT Act. At your request, the Department of 

Justice has reviewed the ACLU’s allegations. It appears 

that each matter cited by the ACLU either did not, in fact, 

involve the USA PATRIOT Act or was an entirely appropriate use of the Act. Thus, the ACLU is mistaken in its 

assertion in the letter that ‘‘the government has abused 

and misused the Patriot Act repeatedly’’ and its press release, entitled ‘‘Patriot Act Abuses and Misuses Abound,’’ 

that accompanied the letter. * * *’’ 53

3. Continued Oversight Through Letters to the Department 

of Justice 

Furthermore, both the House and the Senate Judiciary Committees have conducted continuous oversight. The House Judiciary 

Committee sent the Attorney General a letter on June 13, 2002, 

with 50 detailed questions on the implementation of the USA PATRIOT Act.54 The questions were a result of extensive consultation 

between the Majority and Minority Committee counsel. Assistant 

Attorney General, Daniel Bryant, responded to Chairman Sensenbrenner and Ranking Member Mr. Conyers on July 26, 2002, providing lengthy responses to 28 out of the 50 questions submitted.55

On August 26, 2002, Mr. Bryant sent the responses to the remaining questions,56 after sending responses to six of the questions to 

the House Permanent Select Committee on Intelligence. 

Then, on September 20, 2002, Mr. Bryant sent the Minority additional information regarding the Department of Justice’s responses 

to these questions.57 On April 1, 2003, 

Then, on September 20, 2002, Mr. Bryant sent the Minority additional information regarding the Department of Justice’s responses 

45

57September 20, 2002, Additional information from Daniel Bryant to F. James Sensenbrenner, 

Jr., and John Conyers, Jr., regarding the Department’s responses to questions submitted to the 

Department of Justice on June 13, 2002. 58 April 1, 2003, Letter to the Attorney General from F. James Sensenbrenner, Jr., and John 

Conyers, Jr., regarding the use of preexisting authorities and the new authorities conferred by 

the PATRIOT Act. 59May 13, 2003, Response from Jamie E. Brown to F. James Sensenbrenner, Jr., and John 

Conyers, Jr., to letter sent to the Department of Justice on April 1, 2003. 60 June 13, 2003, Responses from Pamela J. Turner at the Department of Homeland Security 

to F. James Sensenbrenner, Jr., and John Conyers, Jr., to questions forwarded from the Department of Justice on June 13, 2003. 61May 20, 2003, Press Release: ‘‘Sensenbrenner/Conyers Release Justice Department Oversight Answers Regarding USA PATRIOT Act and War on Terrorism’’; May 20, 2003, Curt Anderson, ‘‘Fewer than 50 Held Without Charges,’’ Associated Press Online; May 20, 2003, Curt 

Anderson, ‘‘Government Has Held Fewer Than 50 People as Material Witnesses in War on Terror,’’ Associated Press Worldstream; May 20, 2003, ‘‘Sensenbrenner, Conyers Release Justice Department Oversight Answers Regarding USA PATRIOT Act, War on Terrorism,’’ U.S. Newswire; 

May 21, 2003, Kevin Johnson and Toni Locy, ‘‘Justice Department Reveals Tactics Used in Fight 

Against Terror,’’ USA Today; July 22, 2003, Press Release: ‘‘Statement Regarding Inspector General’s Report on Civil Rights/Liberties Complaints’’; July 22, 2003, Audrey Hudson, ‘‘US Probes 

PATRIOT Act Complaints, Substantiates Few,’’ The Washington Times; September 18, 2003, 

Press Release: ‘‘Sensenbrenner Statement on Justice Department’s Disclosure of Number of 

Times Library and Business Records have been Sought Under Section 215 of the USA PATRIOT 

Act’’; September 19, 2003, Audrey Hudson, ‘‘Librarians Dispute Justice’s Claim on Use of PATRIOT Act,’’ The Washington Times; September 24, 2002, ‘‘Waiting for All the Answers,’’ The 

Milwaukee Journal Sentinel Copley News Service. 62May 19, 2005, Letter to the Attorney General from F. James Sensenbrenner, Jr., requesting 

responses to 44 follow-up questions posed during hearings on implementation of the USA PATRIOT Act. 63 July 12, 2005, Letter to F. James Sensenbrenner, Jr., from William E. Moschella responding 

to 39 follow-up question on implementation of the USA PATRIOT Act. 

to these questions.57 On April 1, 2003, Chairman Sensenbrenner 

and Ranking Member Conyers sent a second letter to the Department of Justice with additional questions regarding the use of preexisting authorities and the new authorities conferred by the USA 

PATRIOT Act.58 Once again, the questions were the product of bipartisan coordination by Committee counsel. Acting Assistant Attorney General, Jamie E. Brown, responded with a May 13, 2003 

letter that answered the questions she deemed relevant to the Department of Justice and forwarded the remaining questions to the 

appropriate officials at the Department of Homeland Security.59 On 

June 13, 2003, the Assistant Secretary for Legislative Affairs at the 

Department of Homeland Security, Pamela J. Turner, sent responses to the forwarded questions.60 These items are posted on 

the Committee’s website and were the subject of extensive press 

coverage.61

On November 20, 2003, Chairman Sensenbrenner and Congressman Hostettler, Chairman of the Subcommittee on Immigration, 

Border Security, and Claims, sent a letter to the Comptroller General of the Government Accountability Office (GAO) requesting a 

GAO study of the implementation of the USA PATRIOT Act antimoney laundering provisions. This report was released on June 6, 

2005. 

On May 19, 2005, Chairman Sensenbrenner sent a letter to Attorney General Gonzales with questions for the record from Members of the Committee.62 Assistant Attorney General Moschella 

provided responses to 39 of the questions on July 12, 2005.63

On May 19, 2005, Chairman Sensenbrenner also sent a letter to 

Attorney General Gonzales with ten questions on specific proviVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00049 Fmt 6659 Sfmt 6602 E:\HR\OC\HR174P1.000 HR174P1
46

64May 19, 2005, Letter to the Attorney General from F. James Sensenbrenner, Jr., requesting 

responses to 10 questions on provisions of the USA PATRIOT Act. 65 June 10, 2005, Letter to F. James Sensenbrenner, Jr., from William E. Moschella responding to 10 questions on provisions of the USA PATRIOT Act. 66 July 1, 2005, Letter to the Attorney General from F. James Sensenbrenner, Jr., requesting 

responses to 18 follow-up questions posed during hearings on implementation of the USA PATRIOT Act. 67 July 12, 2005, Letter to F. James Sensenbrenner, Jr., from William E. Moschella responding 

to 18 follow-up questions posed during hearings on implementation of the USA PATRIOT Act. 

sions of the USA PATRIOT Act.64 On June 10, 2005 the Department responded in a classified letter.65

On July 1, 2005, Chairman Sensenbrenner sent a letter to Attorney General Gonzales requesting additional information on behalf 

of Minority Members of the Committee on the use of the USA PATRIOT Act.66 On July 12, 2005 Assistant Attorney General 

Moschella responded.67

4. Continued Oversight Through Hearings 

The House Judiciary Committee also has held hearings as part 

of its ongoing oversight efforts. On May 20, 2003, the Committee’s 

Subcommittee on the Constitution held an oversight hearing entitled, ‘‘Anti-Terrorism Investigations and the Fourth Amendment 

After September 11th: Where and When Can Government Go to 

Prevent Terrorist Attacks.’’ Then, on June 5, 2003, the Attorney 

General testified before the full Committee on the Judiciary at an 

oversight hearing on the United States Department of Justice. 

Both the hearing on May 20 and the hearing on June 5 discussed 

oversight aspects of the USA PATRIOT Act. 

The Senate Judiciary Committee has been active in its oversight 

responsibilities regarding the implementation of the USA PATRIOT Act as well. The Senate Judiciary Committee held hearings 

on December 6, 2001; April 17, 2002; June 6, 2002; July 25, 2002; 

September 10, 2002; and July 23, 2003; September 22, 2004; April 

5, 2005; and May 10, 2005—all in regard to the USA PATRIOT Act 

or oversight efforts at the Department of Justice. Counsel to the 

Subcommittee on Crime, Terrorism, and Homeland Security have 

monitored these activities and are in regular contact with their 

counterparts in the other body. 

5. Continued Oversight Through Briefings 

Further, the Subcommittee on Crime, Terrorism, and Homeland 

Security of this Committee requested that officials from the Department of Justice appear and answer questions regarding the implementation of the USA PATRIOT Act. In response to our requests, the Department of Justice gave briefings to Members, counsel, and staff. During a briefing held on August 7, 2003, Department officials covered the long-standing authority for law enforcement to conduct delayed searches and collect business records, as 

well as the effect of the USA PATRIOT Act on those authorities. 

During a second briefing, held on February 3, 2004, the Department of Justice discussed its views of S. 1709, the ‘‘Security and 

Freedom Ensured (SAFE) Act of 2003,’’ and H.R. 3352, the House 

companion bill, as both bills proposed changes to the USA PATRIOT Act. 

The Department of Justice has also provided two classified briefings on the use of the Foreign Intelligence Surveillance Act (FISA) 

under the USA PATRIOT Act for Members of the Judiciary ComVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00050 Fmt 6659 Sfmt 6602 E:\HR\OC\HR174P1.000 HR174P1
47

mittee. On June 10, 2003, and October 29, 2003, the Justice Department provided these briefings. The Department also provided 

a law enforcement sensitive briefing on FISA to the House Judiciary Committee Members and staff on March 22, 2005 and a classified briefing on June 7, 2005. 

HEARINGS

The full Committee on the Judiciary held 3 days of hearings on 

the reauthorization of the USA PATRIOT Act on April 6, June 8, 

and June 10 of 2005; and the Committee’s Subcommittee on Crime, 

Terrorism, and Homeland Security held a total of 9 hearings on 

April 19, April 21, April 26, April 28, May 3, May 5, May 10, and 

May 26 of 2005. On April 28 the Subcommittee on Crime, Terrorism, and Homeland Security held two hearings. 

COMMITTEE CONSIDERATION

On July 13, 2005, the Committee met in open session and ordered favorably reported the bill H.R. 3199 with amendment by a 

recorded vote of 23 yeas to 14 nays and 2 passes, a quorum being 

present. 

VOTE OF THE COMMITTEE

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee notes that the following 

roll call votes occurred during the Committee’s consideration of 

H.R. 3199. 

1. An amendment was offered by Mr. Lungren to section 2702 of 

title 18. Section 2702 of title 18 was amended by section 212 of the 

USA PATRIOT Act in 2001 to allow Internet service providers to 

voluntarily disclose the contents of electronic communications and 

subscriber information in emergencies involving immediate danger 

of death or serious physical injury. The amendment would require 

the Attorney General to report annually to the Judiciary Committees of the House and Senate and set forth the number of accounts 

subject to a voluntary disclosure under section 212. The report 

would also have to summarize the basis for disclosure in certain 

circumstances. The amendment passed by voice vote. 

2. An amendment was offered by Mr. Nadler to amend section 

501 of the Foreign Intelligence Surveillance Act of 1978 to change 

the current standard necessary for obtaining a section 215 order to 

request business records held by third parties to require a showing 

of ‘‘specific and articulable facts giving reason to believe that the 

person to whom the records pertain is a foreign power or an agent 

of a foreign power.’’ The amendment also would allow the recipient 

to challenge the order and to petition the court to set aside the 

non-disclosure requirement. The amendment failed by a vote of 12 

yeas and 23 nays.

ROLLCALL NO. 1

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

48

ROLLCALL NO. 1—Continued

Ayes Nays Present 

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher ....................................................................................................... X

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X

Mr. Meehan .......................................................................................................

Mr. Delahunt ..................................................................................................... X

Mr. Wexler .........................................................................................................

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 12 23

3. An amendment was offered by Mr. Flake to amend section 8(c) 

of H.R. 3199 to clarify further that a person can disclose to an attorney the receipt of a 215 order not only to respond, but to challenge, the order. The amendment passed by voice vote. 

4. An amendment was offered by Ms. Waters to amend section 

505 of the USA PATRIOT Act to prohibit the issuance of national 

security letters for records from health insurance companies. The 

amendment failed by a recorded vote of 14 yeas and 23 nays.

ROLLCALL NO. 2

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................

49

ROLLCALL NO. 2—Continued

Ayes Nays Present 

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher ....................................................................................................... X

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X

Mr. Meehan .......................................................................................................

Mr. Delahunt ..................................................................................................... X

Mr. Wexler ......................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 14 23

5. An amendment was offered by Mr. Issa to amend section 

105(c) of the Foreign Intelligence Surveillance Act of 1978. This 

section was modified by section 206 of the USA PATRIOT Act to 

authorize roving wiretaps in FISA investigations. The amendment 

will (1) require applications for roving wiretap surveillance authority to include specific facts upon which the court can make its determination and (2) if the authority is granted, require the applicant to notify the court within 10 days of the initiation of surveillance on a new facility or place and to notify the court of the facts 

and circumstances relied upon by the applicant to justify the belief 

that the target would be using each new facility. The amendment 

passed by a recorded vote of 34 yeas and 0 nays.

ROLLCALL NO. 3 

Ayes Nays Present 

Mr. Hyde ............................................................................................................

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) .............................................................................................

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

50

ROLLCALL NO. 3—Continued

Ayes Nays Present 

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X

Mr. Meehan .......................................................................................................

Mr. Delahunt ..................................................................................................... X

Mr. Wexler ......................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 34 0

6. An amendment was offered by Mr. Scott to second the amendment offered by Mr. Lungren for a 10-year sunset for sections 206 

and 215 of the USA PATRIOT Act. The amendment would have reduced the 10-year to a 4-year sunset. The amendment failed by a 

recorded vote of 15 yeas and 21 nays.

ROLLCALL NO. 4

Ayes Nays Present 

Mr. Hyde ............................................................................................................

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

51

ROLLCALL NO. 4—Continued

Ayes Nays Present 

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X

Mr. Meehan ....................................................................................................... X

Mr. Delahunt ..................................................................................................... X

Mr. Wexler ......................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 15 21

7. An amendment was offered by Mr. Nadler to second the 

amendment offered by Mr. Lungren for a 10-year sunset for sections 206 and 215 of the USA PATRIOT Act. The amendment 

would have reduced the 10-year to a 6-year sunset. The amendment failed by a recorded vote of 9 yeas and 18 nays.

ROLLCALL NO. 5

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ...........................................................................................................

Mr. Issa ............................................................................................................. X

Mr. Flake ...........................................................................................................

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks .........................................................................................................

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman .......................................................................................................

Mr. Boucher ....................................................................................................... X

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren .......................................................................................................

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................

Mr. Meehan ....................................................................................................... X

52

ROLLCALL NO. 5—Continued

Ayes Nays Present 

Mr. Delahunt ..................................................................................................... X

Mr. Wexler .........................................................................................................

Mr. Weiner .........................................................................................................

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen ..................................................................................................

Ms. Wasserman Schultz ....................................................................................

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 9 18

8. An amendment was offered by Mr. Lungren that would provide a sunset for sections 206 and 215 of the USA PATRIOT Act. 

Under the amendment these provisions would expire in 10 years. 

This amendment passed by a recorded vote of 26 yeas and 2 nays.

ROLLCALL NO. 6

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................

Mr. Inglis ........................................................................................................... X

Mr. Hostettler ....................................................................................................

Mr. Green .......................................................................................................... X

Mr. Keller ...........................................................................................................

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks .........................................................................................................

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman .......................................................................................................

Mr. Boucher ....................................................................................................... X

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren .......................................................................................................

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................

Mr. Meehan ....................................................................................................... X

Mr. Delahunt ..................................................................................................... X

Mr. Wexler .........................................................................................................

Mr. Weiner .........................................................................................................

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz ....................................................................................

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 26 2

53

9. An amendment was offered by Mr. Nadler (for himself and Ms. 

Lofgren) to strike section 3 of H.R. 3199. Section 3 repeals section 

224 of the USA PATRIOT Act that states authorities under sections 201, 202, 203(b) and (d), 204, 206, 207, 209, 212, 214, 215, 

217, 218, 220, 223, and 225 of the USA PATRIOT Act (P.L. 107–

296) expire on December 31, 2005. Mr. Lungren’s amendment that 

passed would place a 10-year sunset on two of those sixteen provisions. Mr. Nadler’s amendment would place a 10-year sunset on 

the remaining fourteen sections. The amendment failed by a recorded vote of 12 yeas to 21 nays.

ROLLCALL NO. 7

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte ....................................................................................................

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher ....................................................................................................... X

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................

Mr. Meehan ....................................................................................................... X

Mr. Delahunt ..................................................................................................... X

Mr. Wexler .........................................................................................................

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz ....................................................................................

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 12 21

10. An amendment was offered by Mr. Van Hollen (for himself 

and Mr. Conyers) to amend section 2339A(a) of title 18 to specify 

that the transfer of a firearm to an individual whose name appears 

in the Violent Gang and Terrorist Organization File maintained by 

the Attorney General was under covered. The amendment failed by 

a recorded vote of 15 yeas to 22 nays.

54

ROLLCALL NO. 8

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon .......................................................................................................

Mr. Bachus ........................................................................................................

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher ....................................................................................................... X

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X

Mr. Meehan ....................................................................................................... X

Mr. Delahunt ..................................................................................................... X

Mr. Wexler ......................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 15 22

11. An amendment was offered by Mr. Schiff to prohibit surveillance for planning of terrorist attacks on mass transportation. The 

amendment passed by voice vote. 

12. An amendment was offered by Ms. Lofgren to amend section 

2339A of title 18 to specify that the transfer of 50-caliber sniper 

weapons to a member of al Qaeda. The amendment failed by a recorded vote of 13 yeas to 22 nays.

ROLLCALL NO. 9

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

55

ROLLCALL NO. 9—Continued

Ayes Nays Present 

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X

Mr. Meehan .......................................................................................................

Mr. Delahunt .....................................................................................................

Mr. Wexler ......................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 13 22

13. An amendment was offered by Ms. Lofgren to amend section 

1001 of USA PATRIOT Act to require the Inspector General for the 

Department of Justice to conduct a review of material witness detentions under section 3144 of title 18. The amendment passed by 

a recorded vote of 34 yeas to 0 nays.

ROLLCALL NO. 10

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

56

ROLLCALL NO. 10—Continued

Ayes Nays Present 

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks .........................................................................................................

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X

Mr. Meehan ....................................................................................................... X

Mr. Delahunt ..................................................................................................... X

Mr. Wexler ......................................................................................................... X

Mr. Weiner .........................................................................................................

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 34 0

14. An amendment was offered by Mr. Schiff to amend section 

105(c) of the Foreign Intelligence Surveillance Act to require that 

where the identity of the target of surveillance is not known, a specific description is provided of the target. The amendment failed by 

a recorded vote of 15 yeas to 22 nays.

ROLLCALL NO. 11

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher ....................................................................................................... X

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

57

ROLLCALL NO. 11—Continued

Ayes Nays Present 

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X

Mr. Meehan ....................................................................................................... X

Mr. Delahunt ..................................................................................................... X

Mr. Wexler ......................................................................................................... X

Mr. Weiner .........................................................................................................

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 15 22

15. An amendment was offered by Mr. Watt to require that when 

a warrant is executed in a district other than the district in which 

it was issued, a recipient may seek to quash that warrant in the 

district in which it is served, or, if the ‘‘person is a corporation,’’ 

in any district in the State wherein the corporation was incorporated. The amendment failed by a recorded vote of 14 yeas to 24 

nays.

ROLLCALL NO. 12

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher ....................................................................................................... X

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X

Mr. Meehan ....................................................................................................... X

Mr. Delahunt ..................................................................................................... X

Mr. Wexler ......................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

58

ROLLCALL NO. 12—Continued

Ayes Nays Present 

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 14 24

16. An amendment was offered en bloc by Mr. Schiff to, among 

other things, extend civil forfeiture in certain circumstances to 

‘‘trafficking in nuclear, chemical, biological, or radiological weapons 

technology or material;’’ amend the current definition of ‘‘federal 

crime of terrorism,’’ to include new predicate terrorism offenses; 

and add new ‘‘wiretap predicates’’ under section 2516 of title 18 of 

the Federal criminal code that relate to crimes of terrorism. The 

amendment passed by voice vote. 

17. An amendment was offered by Mr. Schiff to eliminate the 

nondisclosure requirement of a Foreign Intelligence Surveillance 

Court order for business records from a library or bookstore, or for 

medical records, when an individual is a citizen of the United 

States, at the conclusion of investigation. The amendment failed by 

a recorded vote of 13 yeas and 20 nays.

ROLLCALL NO. 13

Ayes Nays Present 

Mr. Hyde ............................................................................................................

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher ....................................................................................................... X

Mr. Nadler .........................................................................................................

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................

Ms. Lofgren .......................................................................................................

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X

Mr. Meehan .......................................................................................................

Mr. Delahunt ..................................................................................................... X

Mr. Wexler ......................................................................................................... X

Mr. Weiner ......................................................................................................... X

59

ROLLCALL NO. 13—Continued

Ayes Nays Present 

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 13 20

18. An amendment was offered by Mr. Wexler to amend section 

2339A(a) of title 18, the material support to terrorists provisions of 

the Federal criminal code, by inserting ‘‘reveals any information 

pertaining to the identity of undercover intelligence officers, 

agents, informants, and sources that the person has or should have 

reason to believe would be sufficient to be used to identify a United 

States intelligence operative.’’ The amendment failed by voice vote. 

19. An amendment was offered by Ms. Lofgren that no Act of 

Congress shall be construed to suspend habeas corpus. The amendment failed by a recorded vote of 14 yeas to 23 nays.

ROLLCALL NO. 14

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher ....................................................................................................... X

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................

Mr. Meehan .......................................................................................................

Mr. Delahunt ..................................................................................................... X

Mr. Wexler ......................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

60

ROLLCALL NO. 14—Continued

Ayes Nays Present 

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 14 23

20. An amendment was offered by Mr. Watt (for himself and Ms. 

Waters) to strike section 8(c) of H.R. 3199 to eliminate the nondisclosure requirement of a Foreign Intelligence Surveillance Court 

order for business records in a national security case unless law enforcement in an ‘‘application for such an order provides specific and 

articulable facts giving the applicant reason to believe that disclosure would result’’ in adverse affects specified in the amendment. 

The amendment failed by a recorded vote of 13 yeas to 23 nays.

ROLLCALL NO. 15

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X

Mr. Meehan .......................................................................................................

Mr. Delahunt ..................................................................................................... X

Mr. Wexler ......................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 13 23

21. An amendment was offered by Mr. Scott to entitle a person 

who prevails on a challenge of the legality of a section 215 order 

61

to reasonable attorneys fees, if any, incurred by the person in pursuing the challenge. The amendment failed by a recorded vote of 

14 yeas to 22 nays.

ROLLCALL NO. 16

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X

Mr. Meehan .......................................................................................................

Mr. Delahunt ..................................................................................................... X

Mr. Wexler ......................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 14 22

22. An amendment was offered by Mr. Schiff to extend for 3 

years the sunset provision relating to individual terrorists as 

agents of foreign powers. The amendment failed by a recorded vote 

of 14 yeas to 22 nays.

ROLLCALL NO. 17

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................

Mr. Lungren ....................................................................................................... X

62

ROLLCALL NO. 17—Continued

Ayes Nays Present 

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................ X

Mr. Meehan .......................................................................................................

Mr. Delahunt ..................................................................................................... X

Mr. Wexler .........................................................................................................

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 14 22

23. An amendment was offered by Ms. Jackson Lee to provide notice of a physical search or surveillance if the subject of such search 

or surveillance is a United States person who is not an agent of a 

foreign power. The amendment failed by a recorded vote of 10 yeas 

to 23 nays.

ROLLCALL NO. 18

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

63

ROLLCALL NO. 18—Continued

Ayes Nays Present 

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman .......................................................................................................

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren .......................................................................................................

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................

Mr. Meehan .......................................................................................................

Mr. Delahunt .....................................................................................................

Mr. Wexler .........................................................................................................

Mr. Weiner ......................................................................................................... X

Mr. Schiff ..........................................................................................................

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 10 23

24. An amendment was offered by Mr. Flake (for himself and Mr. 

Nadler) to section 3103a(b)(3) of title 18 to clarify a reasonable period of time for notice of a search warrant to with a period of time 

of up to 180 days, with extensions of up to 90 day increments. The 

amendment passed by voice vote. 

25. An amendment was offered by Mr. Conyers to create a statutory suppression rule for electronic surveillance and to require increased reporting. The amendment failed by a recorded vote of 14 

yeas to 23 nays.

ROLLCALL NO. 19

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

64

ROLLCALL NO. 19—Continued

Ayes Nays Present 

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................ X

Mr. Meehan .......................................................................................................

Mr. Delahunt ..................................................................................................... X

Mr. Wexler .........................................................................................................

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 14 23

26. An amendment was offered by Mr. Nadler that would amend 

the laws governing national security letters to require the government to demonstrate why the request should not be disclosed. The 

amendment failed by a recorded vote of 14 yeas to 23 nays.

ROLLCALL NO. 20

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................ X

Mr. Meehan .......................................................................................................

Mr. Delahunt ..................................................................................................... X

Mr. Wexler .........................................................................................................

65

ROLLCALL NO. 20—Continued

Ayes Nays Present 

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 14 23

27. An amendment was offered by Mr. Scott to amend section 

105(c) of the Foreign Intelligence Surveillance Act to require surveillance may be directed at a place or facility only for such time 

as the applicant believes that such facility or place is being used, 

or about to be used by the target of the surveillance. The amendment failed by a recorded vote of 13 yeas to 23 nays.

ROLLCALL NO. 21

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................ X

Mr. Meehan .......................................................................................................

Mr. Delahunt ..................................................................................................... X

Mr. Wexler .........................................................................................................

Mr. Weiner ......................................................................................................... X

Mr. Schiff ..........................................................................................................

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 13 23

66

28. An amendment was offered by Mr. Schiff that would require 

public disclosure of the use of national security letters. The amendment failed by a recorded vote of 15 yeas and 21 nays.

ROLLCALL NO. 22

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) .............................................................................................

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................ X

Mr. Meehan .......................................................................................................

Mr. Delahunt ..................................................................................................... X

Mr. Wexler ......................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 15 21

29. An amendment was offered by Ms. Jackson Lee that would 

amend section 501(a)(1) of the Foreign Intelligence Surveillance Act 

to exclude medical records from the types of business records a Foreign Intelligence Surveillance Court order may seek. The amendment failed by a recorded vote of 12 yeas to 24 nays.

ROLLCALL NO. 23

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) .............................................................................................

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

67

ROLLCALL NO. 23—Continued

Ayes Nays Present 

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman .......................................................................................................

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................ X

Mr. Meehan .......................................................................................................

Mr. Delahunt ..................................................................................................... X

Mr. Wexler ......................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 12 24

30. An amendment was offered by Mr. Van Hollen to require the 

Inspector General of the Department of Justice to review the 

progress of the development of procedures established by the Terrorist Screening Center for the removal of misidentified individuals 

from the Terrorist Screening Database. The amendment failed by 

a recorded vote of 15 yeas to 23 nays.

ROLLCALL NO. 24

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

68

ROLLCALL NO. 24—Continued

Ayes Nays Present 

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................

Mr. Meehan ....................................................................................................... X

Mr. Delahunt ..................................................................................................... X

Mr. Wexler ......................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 15 23

31. An amendment was offered by Mr. Nadler to authorize disclosure of the receipt of a national security letter to qualified persons, 

as defined by the amendment. The amendment failed by a recorded 

vote of 16 yeas to 23 nays.

ROLLCALL NO. 25

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

69

ROLLCALL NO. 25—Continued

Ayes Nays Present 

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................ X

Mr. Meehan ....................................................................................................... X

Mr. Delahunt ..................................................................................................... X

Mr. Wexler ......................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 16 23

32. An amendment was offered by Mr. Scott to broaden the exemption in the prohibition of providing material support to terrorists to also cover ‘‘medical services, drinking water, food, children’s 

clothing, educational supplies or services, and other humanitarian 

materials and services that could not be diverted to military ends’’ 

to terrorists. The amendment failed by a recorded vote of 7 yeas 

to 31 nays.

ROLLCALL NO. 26

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren .......................................................................................................

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................ X

Mr. Meehan ....................................................................................................... X

Mr. Delahunt ..................................................................................................... X

Mr. Wexler ......................................................................................................... X

Mr. Weiner ......................................................................................................... X

70

ROLLCALL NO. 26—Continued

Ayes Nays Present 

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 7 31

33. An amendment was offered by Ms. Jackson Lee to require the 

Inspector General of the Department of Justice to review the use 

of any investigative authority under the Attorney General Guidelines on General Crimes, Racketeering Enterprises and Domestic 

Security/Terrorism Investigations beyond those approved by Attorney General Dick Thornburg in March 21, 1989. The amendment 

failed by a recorded vote of 13 yeas to 25 nays.

ROLLCALL NO. 27

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................ X

Mr. Meehan ....................................................................................................... X

Mr. Delahunt ..................................................................................................... X

Mr. Wexler ......................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff ..........................................................................................................

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 13 25

71

34. An amendment was offered by Nadler (for himself and Mr. 

Scott) to amend the statutes authorizing national security letters 

regarding judicial review. The amendment failed by voice vote. 

35. Motion to report H.R. 3199, as amended was agreed to by a 

roll call vote of 23 yeas to 14 nays and 2 pass.

ROLLCALL NO. 28

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... Pass 

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................ X

Mr. Meehan ....................................................................................................... X

Mr. Delahunt ..................................................................................................... X

Mr. Wexler ......................................................................................................... X

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... Pass 

Ms. Sa ́nchez ...................................................................................................... X

Mr. Van Hollen .................................................................................................. X

Ms. Wasserman Schultz .................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 23 14 2 Pass 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee reports that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

72

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 3199, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974:

JULY 18, 2005. 

Hon. F. JAMES SENSENBRENNER, Jr., 

Chairman, Committee on the Judiciary 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 3199, the USA PATRIOT 

and Terrorism Prevention Reauthorization Act of 2005. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Mark Grabowicz. 

Sincerely, 

DOUGLAS HOLTZ-EAKIN, 

Director. 

Enclosure. 

H.R. 3199—USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005 

CBO estimates that implementing H.R. 3199 would have no significant cost to the federal government. Enacting the bill could affect direct spending and revenues, but CBO estimates that any 

such effects would not be significant. 

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA 

PATRIOT) Act of 2001 (Public Law 107–56), as well as the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 

108–458), expanded the powers of federal law enforcement and intelligence agencies to investigate and prosecute terrorist acts. H.R. 

3199 would permanently authorize certain provisions of these acts, 

many of which will otherwise expire on December 31, 2005. In addition, the bill would make several other changes to the laws relating to investigations of potential terrorist activity. 

Because those prosecuted and convicted under H.R. 3199 could 

be subject to civil and criminal fines, the federal government might 

collect additional fines if the legislation is enacted. Collections of 

civil fines are recorded in the budget as revenues. Criminal fines 

are recorded as revenues, then deposited in the Crime Victims 

Fund and later spent. CBO expects that any additional revenues 

and direct spending would not be significant because of the relatively small number of cases affected. 

Section 4 of the Unfunded Mandates Reform Act (UMRA) excludes from the application of that act any legislative provisions 

that are necessary for national security. CBO has determined that 

the provisions of this bill are either excluded from UMRA because 

73

they are necessary for the national security or they contain no 

intergovernmental or private-sector mandates. 

On July 18, 2005, CBO transmitted a cost estimate for H.R. 3199 

as ordered reported by the House Permanent Select Committee on 

Intelligence on July 13, 2005. The two versions of the bill are similar and the cost estimates are identical. 

The CBO staff contact for this estimate is Mark Grabowicz. This 

estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 3199, will continue to provide enhanced law enforcement and intelligence investigative tools and improved information sharing while protecting 

civil liberties. By clarifying the authority provided under the USA 

PATRIOT Act and by eliminating much of the sunset provision in 

that Act and the Intelligence Reform and Terrorism Prevent Act, 

this bill provides certainty in the Federal criminal law, ensures 

that the metaphorical ‘‘Wall’’ is not rebuilt and thus information 

sharing can continue to improve between law enforcement and the 

Intelligence Community, and maintains the advancements in law 

enforcement technology to investigate and thwart terrorist and 

criminal activities. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in article 1 of the Constitution. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

The section-by-section represents the bill as reported by the 

Committee on the Judiciary. 

Section 1. Short Title 

This Act would be cited as the ‘‘USA PATRIOT and Terrorism 

Prevention Reauthorization Act of 2005.’’ Because the Act would repeal sunsets under the USA PATRIOT Act and the Intelligence Reform and Terrorism Prevention Act of 2004, the title refers to both 

Acts. 

Section 2. References to PATRIOT Act 

This section states that for this Reauthorization Act, the Uniting 

and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism shall be referred to as 

the USA PATRIOT Act. 

Section 3. Repeal of USA PATRIOT Act sunset provision 

This section repeals section 224 of the USA PATRIOT Act that 

stated authorities under sections 201, 202, 203(b) and (d), 204, 207, 

209, 212, 214, 217, 218, 220, 223 and 225 of the USA PATRIOT 

Act (Pub. L. No. 107–296) would expire this year on December 31, 

2005. The provision sunsetting sections 206 and 215 is extended 

until December 31, 2015. 

74

The twelve hearings provided evidence that parts of the USA PATRIOT Act needed to be clarified, as Attorney General Gonzales 

and other Department of Justice officials have testified. However, 

witnesses did not provide any evidence that the Government or law 

enforcement was abusing the authorities of the USA PATRIOT Act 

to the Congress or to the Department of Justice Inspector General. 

The IG, as required by section 1001 of the USA PATRIOT Act, has 

issued 6 semiannual reports and has not found abuse by Department of Justice employees of these new authorities. 

Section 4. Repeal of sunset of Individual Terrorists as Agents of 

Foreign Powers 

Section 4 of this bill repeals section 6001(b) of the Intelligence 

Reform and Terrorism Prevention Act (IRTPA). Section 6001(b) 

sunsets section 6001 of IRTPA, which provided a additional definition for ‘‘Agent of a Foreign Power,’’ to cover the ‘‘lone wolf’’ under 

50 U.S.C. 1801(b)(1). Section 1801(b)(1) defined ‘‘Agent of a foreign 

power’’ for any person other than a United States person, who—

(A) acts in the United States as an officer or employee of a 

foreign power, or as a member of a foreign power as defined 

in subsection (a)(4) of this section; 

(B) acts for or on behalf of a foreign power which engages in 

clandestine intelligence activities in the United States contrary 

to the interests of the United States, when the circumstances 

of such person’s presence in the United States indicate that 

such person may engage in such activities in the United 

States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires 

with any person to engage in such activities; 

Section 6001 of the IRTPA added new subparagraph C to the definition, which states ‘‘Agent of a foreign power’’ for any person 

other than a United States person, includes a person who ‘‘engages 

in international terrorism or activities in preparation thereof;’’. 

Section 6001(b) addressed oversight concerns about the provision, 

by applying the USA PATRIOT Act sunset to the provision so that 

definition sunsets on December 31, 2005. 

Section 5. Repeal of sunset provision relating to section 2332B and 

the Material Support sections of Title 18, United States Code 

This section repeals section 6603(g) of the IRTPA, which would 

sunset section 6603, the ‘‘Additions to Offense of Providing Material Support to Terrorism’’. This sunset is problematic in many respects. First, it sunsets a criminal offense and not a law enforcement tool and, second, the sunset would effectively make the underlying provision unconstitutional. Section 805(a)(2)(B) of the USA 

PATRIOT Act was amended by section 6603 of the IRTPA of 2004, 

which covers the prohibition against providing material support to 

terrorists. The changes made in the IRTPA actually addressed 

court concerns on the constitutionality of the Federal crime of providing material support to terrorists. 

On May 10, 2005, the Subcommittee on Crime, Terrorism, and 

Homeland Security held a hearing on the material support provision as enhanced by the USA PATRIOT Act in 2001 and the IRTPA 

of 2004. The ban on providing material support to terrorists predates the USA PATRIOT Act, as it was created in 1996 in the 

75

Antiterrorism and Effective Death Penalty Act. The 1996 Act, in 

part, was in response to the Oklahoma City and first World Trade 

Center terrorist attacks and made it illegal to knowingly provide 

material support to a group designated as a Foreign Terrorist Organization, better known as an FTO. 

In 1998 a group, led by the Humanitarian Law Project, challenged the constitutionality of the ban, arguing it the violated the 

First Amendment. Both the 9th Circuit District Court and the Appeals Court rejected most of the First Amendment claims. The Appeals Court, for instance, rejected the free-association claim, finding that the statute does not prohibit membership in a group or 

support for the political goals of a group. The Appeals Court pointed out that ‘‘What [the law] prohibits is the act of giving material 

support, and there is no constitutional right to facilitate terrorism 

by giving terrorists the weapons and explosives with which to carry 

out their grisly missions.’’ 

The 9th Circuit also rejected the plaintiffs’ contention that the 

law could be interpreted to prohibit the giving of material support 

to the so-called terrorist groups’ nonviolent humanitarian and political activities, concluding that the First Amendment did not create 

a right to give funds to terrorist groups. Money is fungible and the 

Court recognized that ‘‘when someone makes a donation to [terrorist groups], there is no way to tell how the donation is used.’’ 

The Court did find that the language was too vague in areas, and 

focused on the terms ‘‘training’’ and ‘‘personnel.’’ The 9th Circuit 

also found in another case that the term ‘‘expert advice or assistance’’ was unconstitutionally vague. ‘‘Expert advice or assistance’’ 

is language from the USA PATRIOT Act. Congress corrected these 

vagueness problems with section 6603 of the IRTPA of 2004. 

On December 21, 2004, the 9th Circuit Appeals Court recognized 

this correction in lifting an injunction that had barred the Government from prosecuting a Los Angeles group, if the group aided organizations classified as supporting terrorism. According to an Associated Press story dated December 22, 2004, the Court ‘‘said [its 

December 21] decision in Humanitarian Law Project v. Dept. of 

Justice was based partly on the IRTPA of 2004, which [President] 

Bush signed into law on [December 17, 2004].’’

Section 6. Sharing of electronic, wire, and oral interception information 

Section 6 responds to concerns that additional judicial oversight 

was needed for the sharing of criminal wiretap information to the 

Intelligence Community. Section 6 of the Act amends section 

2517(6) of title 18, which was added by section 203(b) of the USA 

PATRIOT Act by requiring that ‘‘an officer or attorney who makes 

a disclosure under this subsection shall, within a reasonable time 

after that disclosure, notify the court that issued the wiretap order 

that such information was shared.’’ The Department of Justice stated at one of the many hearings on the USA PATRIOT Act that 

they could ‘‘take [such a proposal] under consideration and have a 

discussion about [it].’’ But ‘‘[w]ith respect to 203(d), relating to that 

sharing of information, [it] would put an unreasonable burden in 

terms of how we seek to exchange the information in a task force 

[i.e., JTTF and NTTC] approach.’’ 

76

On April 19, 2005, the Subcommittee on Crime, Terrorism, and 

Homeland Security held a hearing on Section 203, which facilitates 

effective sharing of information collected through the use of criminal wiretaps, grand juries, and other criminal investigations, with 

Executive Branch officials. To protect privacy, the USA PATRIOT 

Act: (1) limited such disclosures to foreign intelligence and counterintelligence information, as defined by statute; (2) restricted disclosure to officials with a need to know in performance of official duties; and (3) retained the limitations on public or other unauthorized disclosure. Prior to passage of the USA PATRIOT Act, the law 

hampered law enforcement from sharing information with or receiving information from other Government agencies outside of law 

enforcement that might nevertheless relate to terrorist activities or 

national security. 

Section 203(b) deals with information obtained through a criminal wiretap. The section amended section 2517 of title 18 to allow 

law enforcement officials to share foreign intelligence or counterintelligence (as defined in section 3 of the National Security Act of 

1947 (50 U.S.C. 401a)), or foreign intelligence information (as defined in subsection (19) of section 2510 of this title) obtained 

through a criminal wiretap with law enforcement, intelligence, protective, immigration, national defense, or national security personnel for use only as necessary in the conduct of that person’s official duties subject to any limitations on the unauthorized disclosure 

of such information. The language in the USA PATRIOT Act is 

similar to section 103 of H.R. 2975, the PATRIOT Act that the 

House Judiciary Committee reported favorably with unanimous 

consent. 

While some argued that the Committee should require similar 

notice to a court with regard to section 203(d), which authorizes the 

sharing of information from a criminal investigation, the Committee concluded that such a change would effectively eliminate the 

ability of law enforcement and anti-terrorism task forces—such as 

the Joint Terrorism Task Forces (JTTFs)—to operate. Much of that 

information used by these task forces is not under a court order requiring notice. To require notice defeats the purpose of section 

203(d) and would create a statutory ‘‘wall’’ preventing vital information from being shared. 

Section 7. Duration of FISA of Non-United States persons 

Prior to enactment of the USA PATRIOT Act, the Government 

had 90 days to carry out surveillance and 45 days to conduct a 

physical search under a FISA court order before seeking an extension. Because it often takes longer than these established periods 

to get on the premises or to conduct electronic surveillance, and the 

delay in applying for an extension or reapplying for a new order 

posed a threat to national security. To address this problem, the 

USA PATRIOT Act added 30 days to the authorized period for surveillance from 90 days to 120 days. It also extended the period for 

physical searches from 45 days to 90 days. 

Attorney General Gonzalez requested at the April 6, 2005, hearing before the Full Committee that section 207 of the USA PATRIOT Act be amended. He stated: ‘‘Another important FISA-related Patriot Act provision is Section 207. Prior to this law, the 

Justice Department invested considerable time returning to court 

77

to renew existing orders. Section 207 substantially reduced this investment of time by increasing the maximum time duration for 

FISA, electronic surveillance, and physical search orders.’’ 

The Department of Justice estimates that the enactment of section 207 has saved nearly 60,000 attorney hours, or 30 lawyers a 

year’s of work. According to the Justice Department, this estimate 

did not account for time saved by FBI agents, administrative staff, 

and the judiciary. This section of H.R. 3199 would extend the maximum duration of orders for electronic surveillance and physical 

search targeted against agents of foreign powers who are not 

United States persons. Specifically, initial orders authorizing 

searches and electronic surveillance would be for periods of up to 

120 days, and renewal orders would extend for periods of up to one 

year. 

The USA PATRIOT Act did not amend the permissible duration 

of orders for pen register and trap and trace surveillance under 

FISA. The current duration of initial and renewal orders for installation and use of a pen register or trap and trace device is for a 

period not to exceed 90 days. This section would extend the maximum duration of both initial and renewal orders for pen register 

and trap and trace surveillance, in cases where the Government 

certified that the information likely to be obtained is foreign intelligence information not concerning a United States person, for a period of one year. 

This section would allow the United States and the Foreign Intelligence Surveillance Court to focus more scrutiny on applications 

for surveillance involving United States persons. This section 

would also allow intelligence officials to spend more time investigating potential terrorist or espionage activity by non-U.S. persons, rather than wasting valuable time returning to the Foreign 

Intelligence Surveillance Court to extend surveillance against such 

persons that had already been authorized. Indeed, the Department 

of Justice estimates that had these proposals been included in the 

USA PATRIOT Act, the Department would have saved 25,000 attorney hours. These ideas were specifically endorsed in the recent 

report of the WMD Commission, which said that the amendments 

would allow the Department both to ‘‘focus their attention where 

it is most needed’’ and maintain the current level of oversight paid 

to cases implicating the civil liberties of Americans. 

Section 8. Access to certain business records under section 501 of 

FISA 

Section 7 of the bill would clarify that a recipient of a 215 order 

may consult with a lawyer and the appropriate people necessary to 

respond to the order. The section would also clarify that the FISA 

order may be challenged. 

Additionally, the language amends section 215 to clarify that the 

court has discretion to issue an order. The amending language 

states that ‘‘if a judge finds that the application meets the requirements of subsections (a) and (b), the judge shall enter an ex parte 

order as requested, or as modified, approving the release of 

records.’’ The current language is unclear with respect to the discretion it provides to judges because it states that the ‘‘judge shall’’ 

issue an order and later mentions that this order will only be 

issued ‘‘if the judge finds that the requirements have been met.’’ 

78

The language does not clearly specify what those requirements, so 

the language in H.R. 3199 does. 

As was highlighted by the hearings held by this Committee, for 

years prior to and since enactment of the USA PATRIOT Act, law 

enforcement could obtain records from all manner of businesses 

through grand jury issued subpoenas. Section 215 of the USA PATRIOT Act created similar authority, but with more stringent requirements. Section 215 authorizes the FISA court the discretion 

to issue an order for business records related to ‘‘international terrorism and clandestine intelligence activities.’’ These judicial orders 

conceivably could be issued to bookstores or libraries, but section 

215 does not single them out. Section 215 has a very narrow scope 

that can only be used (1) ‘‘to obtain foreign intelligence information 

not concerning a United States person’’; or (2) ‘‘to protect against 

international terrorism or clandestine intelligence activities.’’ 50 

U.S.C. § 1861(b)(2). 

FBI agents cannot obtain records under section 215 unless they 

receive a court order. Grand jury subpoenas, by contrast, do not require judicial approval. Agents cannot use section 215 to unilaterally compel libraries or any other entity to turn over their records. 

Agents must obtain such documents only by appearing before the 

FISA court and convincing the court that these business records 

are needed. See 50 U.S.C. § 1861(b). Additionally, section 215 goes 

to great lengths to preserve the First Amendment rights of libraries, their patrons, and other affected entities as it expressly provides that the FBI cannot conduct investigations ‘‘of a United 

States person solely on the basis of activities protected by the first 

amendment to the Constitution of the United States.’’ 50 U.S.C. 

§ 1861(a)(2). Section 215 provides for thorough congressional oversight; every six months, the Attorney General is required to ‘‘fully 

inform’’ Congress on the number of times agents have sought a 

court order under section 215, as well as the number of times such 

requests were granted, modified, or denied. See 50 U.S.C. § 1862. 

Section 9. Report relating to emergency disclosures under section 

212 of the USA PATRIOT Act 

This section would amend section 2702 of title 18, as amended 

by section 212 of the USA PATRIOT Act. Section 212 allowed 

Internet service providers to voluntarily disclose the contents of 

electronic communications as well as subscriber information in 

emergencies involving immediate danger of death or serious physical injury. To address concerns that this authority, in certain circumstances, is not subject to adequate congressional, judicial or 

public oversight (particularly in situations where the authority is 

used but criminal charges do not result) the amendment would require the Attorney General to report annually to the Judiciary 

Committees of the House and Senate and set forth the number of 

accounts subject to a section 212 disclosure. The report would also 

have to summarize the basis for disclosure in certain circumstances. The Committee believes this would strengthen oversight on the use of this authority without undermining important 

law enforcement prerogatives, and without tipping off perpetrators 

while simultaneously preserving the vitality of this life saving authority. 

79

Section 10. Specificity and notification for roving surveillance under 

the Foreign Intelligence Surveillance Act 

Section 206 of the PATRIOT Act enabled use of roving wiretaps 

in FISA investigations. The Amendment would require intelligence 

investigators to notify to the FISA Court within 10 days each time 

it initiates surveillance on a new communications facility pursuant 

to a FISA roving wiretap. By requiring that the FISA Court be regularly informed on an ongoing basis for all multi-point wiretaps, 

the Amendment would address Members’ concerns that the openended authorization to surveil new locations could be abused. The 

Amendment does this by providing an extra layer of judicial review 

and ensures that intelligence investigators will not abuse the 

multi-point authority. This approach is superior in the FISA context (where surveillance is often long-running and subject to extensive and sophisticated counter-surveillance measures) than a proximity test or ascertainment requirement that could endanger an investigation or field agents conducting the investigation. 

Section 11. Prohibition on planning terrorist attacks on mass transportation 

This section amends section 1993a of title 18 of the Federal 

Criminal code that protects against Terrorist attacks and other 

acts of violence against mass transportation systems. Section 1993 

of title 18 covers attacks on mass transportation systems but did 

not cover the planning for such attacks. This provision closes that 

loophole and makes it a crime to ‘‘surveil, photograph, videotape, 

diagram, or to otherwise collect information with the intent to plan 

or assist in planning any of the acts described’’ in paragraphs (1)–

(5) of section 1993a. 

Section 12. Enhanced review of material witness detention 

This section would amend section 1001 of the USA PATRIOT Act 

to require the Inspector General for the Department of Justice to 

conduct a review of material witness detentions under section 3144 

of title 18. 

Section 13. Forfeiture 

The USA PATRIOT Act amended 18 U.S.C. § 981 to expressly 

provide that any property used to commit or facilitate the commission of, derived from, or otherwise involved in a Federal crime of 

terrorism (as defined in 18 U.S.C. § 2331) is subject to civil forfeiture provisions. Prior to the USA PATRIOT Act, only the ‘‘proceeds’’ of a crime of terrorism were subject to civil forfeiture provisions. This amendment would extend forfeiture to ‘‘trafficking in 

nuclear, chemical, biological, or radiological weapons technology or 

material,’’ after ’’activities’’. 

Section 14. Predicate offenses 

This section amended the current definition of ‘‘federal crime of 

terrorism,’’ to include new predicate offenses. This list of predicate 

offenses is referenced by other sections of the Act, and certain provisions of the Act are made applicable to offenses appearing on this 

list. This section adds crimes relating to military-type training 

from a foreign terrorist organization; and relating to nuclear and 

weapons of mass destruction threats. 

80

68October 17, 2000, Memorandum for the Counsel, Office of Intelligence Policy and Review, 

U.S. DOJ. 69See Dalia v. United States, 441 U.S. 238 (1979); see also Katz v. United States, 389 U.S. 

347 (1967). 70 April 4, 2005 U.S. Department of Justice letter to Senator Spector. p. 3 citing See United 

States v. Freitas, 800 F.2d 1451 (9th Cir. 1986); United States v. Villegas, 899 F.2d 1324 (2d 

Cir. 1990); United States v. Simons, 206 F.3d 392 (4th Cir. 2000). 

Section 15. Wiretap predicates 

‘‘Title III of the Omnibus Crime Control and Safe Streets Act of 

1968, 18 U.S.C. §§ 2510–2522 (1994 & Supp. II 1996), requires the 

government, unless otherwise permitted, to obtain an order of a 

court before conducting electronic surveillance. The government is 

permitted to seek such orders only in connection with the investigation of the criminal offenses enumerated in section 2516 of title 

18.’’ 68 This section added new ‘‘wiretap predicates’’ under section 

2516 of title 18 of the Federal criminal code that relate to crimes 

of terrorism. 

Section 16. Defines reasonable period of delay under the USA PATRIOT Act 

Contrary to reports, the USA PATRIOT Act did not create delayed notice search warrants. Delayed notice search warrants have 

been used for decades prior to enactment of the USA PATRIOT 

Act. In 1979, the U.S. Supreme Court expressly held in Dalia v. 

United States that the Fourth Amendment does not require law enforcement to give immediate notice of the execution of a search 

warrant.69 The Department of Justice states that three Federal 

courts of appeals had considered the constitutionality of delayednotice search warrants since 1979 and upheld their constitutionality.70

A delayed notice search warrant simply means that a court has 

expressly authorized investigations to delay notifying a suspect 

that a search warrant has been executed (i.e., a court-ordered 

search has occurred). The search warrant is the same regardless of 

when the suspect receives notice. Thus, before a search warrant is 

issued, whether notice is delayed or not, a Federal judge must find 

that there is probable cause to believe the property to be searched 

or seized constitutes evidence of a criminal offense. 

Congress included section 213 in the USA PATRIOT Act to create a uniform nationwide standard for the issuance of these warrants. Under section 213 there are limited circumstances when a 

court may delay notice. These circumstances are the same predicate circumstances permitted in an application for delaying notice 

in a search warrant for stored communications under section 

2705(a)(2) of title 18, which predated the USA PATRIOT Act. For 

a court to permit a delay in the notice of a search of a suspect’s 

property, the investigator or prosecutor must show that there is 

reasonable cause to believe that if the suspect is notified at the 

same time as the search one of the following situations may occur: • notification would endanger the life or physical safety of an 

individual; 

• notification would cause flight from prosecution; • notification would result in destruction of, or tampering 

with, evidence; 

• notification would result in intimidation of potential witnesses; or 

81

• notification would cause serious jeopardy to an investigation 

or unduly delay a trial. 

Section 213 permits delay limited only by a reasonableness requirement. Members are concerned by this seemingly open-ended 

term. This Amendment would permit delays for up to 180 days, and 

would enable orders to be renewable in up to 90 day increments.

CHANGES IN EXISTING LAW BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no changes are proposed is shown in roman):

USA PATRIOT ACT 

* * * * * * *

TITLE II—ENHANCED SURVEILLANCE 

PROCEDURES 

* * * * * * *

øSEC. 224. SUNSET. 

ø(a) IN GENERAL.—Except as provided in subsection (b), this title 

and the amendments made by this title (other than sections 203(a), 

203(c), 205, 208, 210, 211, 213, 216, 219, 221, and 222, and the 

amendments made by those sections) shall cease to have effect on 

December 31, 2005. 

ø(b) EXCEPTION.—With respect to any particular foreign intelligence investigation that began before the date on which the provisions referred to in subsection (a) cease to have effect, or with respect to any particular offense or potential offense that began or occurred before the date on which such provisions cease to have effect, such provisions shall continue in effect.¿

* * * * * * *

TITLE X—MISCELLANEOUS 

SEC. 1001. REVIEW OF THE DEPARTMENT OF JUSTICE. 

The Inspector General of the Department of Justice shall designate one official who shall—

(1)(A) review information and receive complaints alleging 

abuses of civil rights and civil liberties by employees and officials of the Department of Justice, and (B) review detentions of 

persons under section 3144 of title 18, United States Code, including their length, conditions of access to counsel, frequency 

of access to counsel, offense at issue, and frequency of appearance before a grand jury; 

* * * * * * *

82

FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978

* * * * * * *

TITLE I—ELECTRONIC SURVEILLANCE 

WITHIN THE UNITED STATES FOR 

FOREIGN INTELLIGENCE PURPOSES 

* * * * * * *

DESIGNATION OF JUDGES

SEC. 103. (a) * * *

* * * * * * *

(e)(1) Three judges designated under subsection (a) who reside 

within 20 miles of the District of Columbia, or if all of such judges 

are unavailable, other judges of the court established under subsection (a) as may be designated by the Presiding Judge of such 

court (who is designated by the Chief Justice of the United States 

from among the judges of the court), shall comprise a petition review panel which shall have jurisdiction to review petitions filed 

pursuant to section 501(f)(1). 

(2) Not later than 60 days after the date of the enactment of the 

USA PATRIOT and Terrorism Prevention Reauthorization Act of 

2005, the court established under subsection (a) shall develop and 

issue procedures for the review of petitions filed pursuant to section 

501(f)(1) by the panel established under paragraph (1). Such procedures shall provide that review of a petition shall be conducted ex 

parte and in camera and shall also provide for the designation of 

an Acting Presiding Judge.

* * * * * * *

ISSUANCE OF AN ORDER

SEC. 105. (a) * * *

* * * * * * *

(c) An order approving an electronic surveillance under this section shall—

(1) * * *

(2) direct—

(A) * * *

(B) that, upon the request of the applicant, a specified 

communication or other common carrier, landlord, custodian, or other specified person, or in circumstances øwhere 

the Court finds¿ where the Court finds, based upon specific 

facts provided in the application, that the actions of the 

target of the application may have the effect of thwarting 

the identification of a specified person, such other persons, 

furnish the applicant forthwith all information, facilities, 

or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the 

services that such carrier, landlord, custodian, or other 

person is providing that target of electronic surveillance; 

83

(C) that such carrier, landlord, custodian, or other person maintain under security procedures approved by the 

Attorney General and the Director of National Intelligence 

any records concerning the surveillance or the aid furnished that such person wishes to retain; øand¿

(D) that the applicant compensate, at the prevailing 

rate, such carrier, landlord, custodian, or other person for 

furnishing such aidø.¿; and

(E) that, in the case of electronic surveillance directed at 

a facility or place that is not known at the time the order 

is issued, the applicant shall notify a judge having jurisdiction under section 103 within 10 days after electronic surveillance begins to be directed at a new facility or place, 

and such notice shall contain a statement of the facts and 

circumstances relied upon by the applicant to justify the belief that the facility or place at which the electronic surveillance is or was directed is being used, or is about to be 

used, by the target of electronic surveillance.

* * * * * * *

(e)(1) An order issued under this section may approve an electronic surveillance for the period necessary to achieve its purpose, 

or for ninety days, whichever is less, except that (A) an order under 

this section shall approve an electronic surveillance targeted 

against a foreign power, as defined in section 101(a), (1), (2), or (3), 

for the period specified in the application or for one year, whichever 

is less, and (B) an order under this Act for a surveillance targeted 

against an agent of a foreign powerø, as defined in section 

101(b)(1)(A)¿ who is not a United States person may be for the period specified in the application or for 120 days, whichever is less. 

(2) Extensions of an order issued under this title may be granted 

on the same basis as an original order upon an application for an 

extension and new findings made in the same manner as required 

for an original order, except that (A) an extension of an order 

under this Act for a surveillance targeted against a foreign power, 

a defined in section 101(a) (5) or (6), or against a foreign power as 

defined in section 101(a)(4) that is not a United States person, may 

be for a period not to exceed one year if the judge finds probable 

cause to believe that no communication of any individual United 

States person will be acquired during the period, and (B) an extension of an order under this Act for a surveillance targeted against 

an agent of a foreign power øas defined in section 101(b)(1)(A)¿

who is not a United States person may be for a period not to exceed 

1 year. 

* * * * * * *

TITLE III—PHYSICAL SEARCHES WITHIN THE UNITED STATES FOR FOREIGN 

INTELLIGENCE PURPOSES 

* * * * * * *

84

ISSUANCE OF AN ORDER

SEC. 304. (a) * * *

* * * * * * *

(d)(1) An order issued under this section may approve a physical 

search for the period necessary to achieve its purpose, or for 90 

days, whichever is less, except that (A) an order under this section 

shall approve a physical search targeted against a foreign power, 

as defined in paragraph (1), (2), or (3) of section 101(a), for the period specified in the application or for one year, whichever is less, 

and (B) an order under this section for a physical search targeted 

against an agent of a foreign power øas defined in section 

101(b)(1)(A)¿ who is not a United States person may be for the period specified in the application or for 120 days, whichever is less. 

(2) Extensions of an order issued under this title may be granted 

on the same basis as the original order upon an application for an 

extension and new findings made in the same manner as required 

for the original order, except that an extension of an order under 

this Act for a physical search targeted against a foreign power, as 

defined in section 101(a) (5) or (6), or against a foreign power, as 

defined in section 101(a)(4), that is not a United States person, or 

against an agent of a foreign power øas defined in section 

101(b)(1)(A)¿ who is not a United States person, may be for a period 

not to exceed one year if the judge finds probable cause to believe 

that no property of any individual United States person will be acquired during the period. 

* * * * * * *

TITLE IV—PEN REGISTERS AND TRAP 

AND TRACE DEVICES FOR FOREIGN 

INTELLIGENCE PURPOSES 

* * * * * * *

PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN

INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS

SEC. 402. (a) * * *

* * * * * * *

ø(e) An¿ (e)(1) Except as provided in paragraph (2), an order 

issued under this section shall authorize the installation and use 

of a pen register or trap and trace device for a period not to exceed 

90 days. Extensions of such an order may be granted, but only 

upon an application for an order under this section and upon the 

judicial finding required by subsection (d). The period of extension 

shall be for a period not to exceed 90 days.

(2) In the case of an application under subsection (c) where the 

applicant has certified that the information likely to be obtained is 

foreign intelligence information not concerning a United States person, an order, or an extension of an order, under this section may 

be for a period not to exceed one year.

* * * * * * *

85

TITLE V—ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE PURPOSES 

SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS. 

(a) * * *

(b) Each application under this section—

(1) * * *

(2) shall specify that the records concerned are sought for an 

authorized investigation conducted in accordance with subsection (a)(2) øto obtain foreign intelligence information not 

concerning a United States person or to protect against international terrorism or clandestine intelligence activities.¿ and 

that the information likely to be obtained from the tangible 

things is reasonably expected to be (A) foreign intelligence information not concerning a United States person, or (B) relevant 

to an ongoing investigation to protect against international terrorism or clandestine intelligence activities.

ø(c)(1) Upon an application made pursuant to this section, the 

judge shall enter an ex parte order as requested, or as modified, 

approving the release of records if the judge finds that the application meets the requirements of this section.¿

(c)(1) Upon an application made pursuant to this section, if the 

judge finds that the application meets the requirements of subsections (a) and (b), the judge shall enter an ex parte order as requested, or as modified, approving the release of records.

* * * * * * *

ø(d) No person shall disclose to any other person (other than 

those persons necessary to produce the tangible things under this 

section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.¿

(d)(1) No person shall disclose to any person (other than a qualified person) that the United States has sought or obtained tangible 

things under this section. 

(2) An order under this section shall notify the person to whom 

the order is directed of the nondisclosure requirement under paragraph (1). 

(3) Any person to whom an order is directed under this section 

who discloses that the United States has sought to obtain tangible 

things under this section to a qualified person with respect to the 

order shall inform such qualified person of the nondisclosure requirement under paragraph (1) and that such qualified person is 

also subject to such nondisclosure requirement. 

(4) A qualified person shall be subject to any nondisclosure requirement applicable to a person to whom an order is directed 

under this section in the same manner as such person. 

(5) In this subsection, the term ‘‘qualified person’’ means—

(A) any person necessary to produce the tangible things pursuant to an order under this section; or 

86

(B) an attorney to obtain legal advice with respect to an order 

under this section.

* * * * * * *

(f)(1) A person receiving an order to produce any tangible thing 

under this section may challenge the legality of that order by filing 

a petition in the panel established by section 103(e)(1). The Presiding Judge shall conduct an initial review of the petition. If the 

Presiding Judge determines that the petition is frivolous, the Presiding Judge shall immediately deny the petition and promptly provide a written statement of the reasons for the determination for the 

record. If the Presiding Judge determines that the petition is not 

frivolous, the Presiding Judge shall immediately assign the petition 

to one of the judges serving on such panel. The assigned judge shall 

promptly consider the petition in accordance with procedures developed and issued pursuant to section 103(e)(2). The judge considering the petition may modify or set aside the order only if the judge 

finds that the order does not meet the requirements of this section 

or is otherwise unlawful. If the judge does not modify or set aside 

the order, the judge shall immediately affirm the order and order 

the recipient to comply therewith. A petition for review of a decision 

to affirm, modify, or set aside an order by the United States or any 

person receiving such order shall be to the court of review established under section 103(b), which shall have jurisdiction to consider such petitions. The court of review shall immediately provide 

for the record a written statement of the reasons for its decision and, 

on petition of the United States or any person receiving such order 

for writ of certiorari, the record shall be transmitted under seal to 

the Supreme Court, which shall have jurisdiction to review such decision. 

(2) Judicial proceedings under this subsection shall be concluded 

as expeditiously as possible. The judge considering a petition filed 

under this subsection shall provide for the record a written statement of the reasons for the decision. The record of proceedings, including petitions filed, orders granted, and statements of reasons for 

decision, shall be maintained under security measures established 

by the Chief Justice of the United States in consultation with the 

Attorney General and the Director of National Intelligence. 

(3) All petitions under this subsection shall be filed under seal, 

and the court, upon the government’s request, shall review any government submission, which may include classified information, as 

well as the government’s application and related materials, ex parte 

and in camera.

[Effective December 31, 2015, section 3(b) of H.R. 3199 as reported by the 

Committee on the Judiciary, provides that the Foreign Intelligence Surveillance Act of 1978 is amended so that sections 501, 502, and 105(c)(2) 

read as they read on October 25, 2001.] 

ISSUANCE OF AN ORDER

SEC. 105. (a) * * *

* * * * * * *

(c) An order approving an electronic surveillance under this section shall—

(1) * * *

(2) direct—

87

(A) that the minimization procedures be followed; 

(B) that, upon the request of the applicant, a specified 

communication or other common carrier, landlord, custodian, or other specified person furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a 

manner as will protect its secrecy and produce a minimum 

of interference with the services that such carrier, landlord, custodian, or other person is providing that target of 

electronic surveillance; 

(C) that such carrier, landlord, custodian, or other person maintain under security procedures approved by the 

Attorney General and the Director of National Intelligence 

any records concerning the surveillance or the aid furnished that such person wishes to retain; and 

(D) that the applicant compensate, at the prevailing 

rate, such carrier, landlord, custodian, or other person for 

furnishing such aid. 

* * * * * * *

SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS. 

(a)(1) The Director of the Federal Bureau of Investigation or a 

designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order 

requiring the production of any tangible things (including books, 

records, papers, documents, and other items) for an investigation to 

protect against international terrorism or clandestine intelligence 

activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by 

the first amendment to the Constitution. 

(2) An investigation conducted under this section shall—

(A) be conducted under guidelines approved by the Attorney 

General under Executive Order 12333 (or a successor order); 

and 

(B) not be conducted of a United States person solely upon 

the basis of activities protected by the first amendment to the 

Constitution of the United States. 

(b) Each application under this section—

(1) shall be made to—

(A) a judge of the court established by section 103(a); or 

(B) a United States Magistrate Judge under chapter 43 

of title 28, United States Code, who is publicly designated 

by the Chief Justice of the United States to have the 

power to hear applications and grant orders for the production of tangible things under this section on behalf of 

a judge of that court; and 

(2) shall specify that the records concerned are sought for an 

authorized investigation conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities. 

(c)(1) Upon an application made pursuant to this section, the 

judge shall enter an ex parte order as requested, or as modified, 

88

approving the release of records if the judge finds that the application meets the requirements of this section. 

(2) An order under this subsection shall not disclose that it is 

issued for purposes of an investigation described in subsection (a). 

(d) No person shall disclose to any other person (other than those 

persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section. 

(e) A person who, in good faith, produces tangible things under 

an order pursuant to this section shall not be liable to any other 

person for such production. Such production shall not be deemed to 

constitute a waiver of any privilege in any other proceeding or context. 

SEC. 502. CONGRESSIONAL OVERSIGHT. 

(a) On a semiannual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House 

of Representatives and the Select Committee on Intelligence of the 

Senate concerning all requests for the production of tangible things 

under section 402. 

(b) On a semiannual basis, the Attorney General shall provide to 

the Committees on the Judiciary of the House of Representatives 

and the Senate a report setting forth with respect to the preceding 

6-month period—

(1) the total number of applications made for orders approving requests for the production of tangible things under section 

402; and 

(2) the total number of such orders either granted, modified, 

or denied. 

Intelligence Reform and Terrorism Prevention Act of 2004

* * * * * * *

TITLE VI—TERRORISM PREVENTION 

Subtitle A—Individual Terrorists as Agents 

of Foreign Powers 

SEC. 6001. INDIVIDUAL TERRORISTS AS AGENTS OF FOREIGN POWERS. 

ø(a) IN GENERAL.—Section¿ Section 101(b)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b)(1)) is amended by adding at the end the following new subparagraph: 

‘‘(C) engages in international terrorism or activities in 

preparation therefore; or’’. 

ø(b) SUNSET.—The amendment made by subsection (a) shall be 

subject to the sunset provision in section 224 of Public Law 107–

56 (115 Stat. 295), including the exception provided in subsection 

(b) of such section 224.¿

* * * * * * *

89

Subtitle E—Criminal History Background 

Checks 

* * * * * * *

SEC. 6603. ADDITIONS TO OFFENSE OF PROVIDING MATERIAL SUPPORT TO TERRORISM. 

(a) * * *

* * * * * * *

ø(g) SUNSET PROVISION.—

ø(1) IN GENERAL.—Except as provided in paragraph (2), this 

section and the amendments made by this section shall cease 

to be effective on December 31, 2006. 

ø(2) EXCEPTION.—This section and the amendments made by 

this section shall continue in effect with respect to any particular offense that—

ø(A) is prohibited by this section or amendments made 

by this section; and 

ø(B) began or occurred before December 31, 2006.¿

* * * * * * *

TITLE 18, UNITED STATES CODE 

* * * * * * *

PART I—CRIMES 

* * * * * * *

CHAPTER 46—FORFEITURE 

* * * * * * *

§ 981. Civil forfeiture 

(a)(1) The following property is subject to forfeiture to the United 

States: 

(A) * * *

(B) Any property, real or personal, within the jurisdiction of 

the United States, constituting, derived from, or traceable to, 

any proceeds obtained directly or indirectly from an offense 

against a foreign nation, or any property used to facilitate such 

an offense, if the offense—

(i) involves trafficking in nuclear, chemical, biological, or radiological weapons technology or material, or the manufacture, 

importation, sale, or distribution of a controlled substance (as 

that term is defined for purposes of the Controlled Substances 

Act), or any other conduct described in section 1956(c)(7)(B); 

* * * * * * *

CHAPTER 97—RAILROADS 

* * * * * * *

90

§ 1993. Terrorist attacks and other acts of violence against 

mass transportation systems 

(a) GENERAL PROHIBITIONS.—Whoever willfully—

(1) * * *

* * * * * * *

(7) conveys or causes to be conveyed false information, knowing the information to be false, concerning an attempt or alleged attempt being made or to be made, to do any act which 

would be a crime prohibited by this subsection; øor¿

(8) surveils, photographs, videotapes, diagrams, or otherwise 

collects information with the intent to plan or assist in planning any of the acts described in the paragraphs (1) through 

(7); or

ø(8)¿ (9) attempts, threatens, or conspires to do any of the 

aforesaid acts, 

* * * * * * *

CHAPTER 113B—TERRORISM 

* * * * * * *

§ 2332b. Acts of terrorism transcending national boundaries 

(a) * * *

* * * * * * *

(g) DEFINITIONS.—As used in this section—

(1) * * *

* * * * * * *

(5) the term ‘‘Federal crime of terrorism’’ means an offense 

that—

(A) * * *

(B) is a violation of—

(i) section 32 (relating to destruction of aircraft or 

aircraft facilities), 37 (relating to violence at international airports), 81 (relating to arson within special 

maritime and territorial jurisdiction), 175 or 175b (relating to biological weapons), 175c (relating to variola 

virus), 229 (relating to chemical weapons), subsection 

(a), (b), (c), or (d) of section 351 (relating to congressional, cabinet, and Supreme Court assassination and 

kidnaping), 831 (relating to nuclear materials), 832 

(relating to nuclear and weapons of mass destruction 

threats), 832 (relating to participation in nuclear and 

weapons of mass destruction threats to the United 

States) 842(m) or (n) (relating to plastic explosives), 

844(f)(2) or (3) (relating to arson and bombing of Government property risking or causing death), 844(i) (relating to arson and bombing of property used in interstate commerce), 930(c) (relating to killing or attempted killing during an attack on a Federal facility 

with a dangerous weapon), 956(a)(1) (relating to conspiracy to murder, kidnap, or maim persons abroad), 

1030(a)(1) (relating to protection of computers), 

1030(a)(5)(A)(i) resulting in damage as defined in 

91

1030(a)(5)(B)(ii) through (v) (relating to protection of 

computers), 1114 (relating to killing or attempted killing of officers and employees of the United States), 

1116 (relating to murder or manslaughter of foreign 

officials, official guests, or internationally protected 

persons), 1203 (relating to hostage taking), 1361 (relating to government property or contracts), 1362 (relating to destruction of communication lines, stations, 

or systems), 1363 (relating to injury to buildings or 

property within special maritime and territorial jurisdiction of the United States), 1366(a) (relating to destruction of an energy facility), 1751(a), (b), (c), or (d) 

(relating to Presidential and Presidential staff assassination and kidnaping), 1992 (relating to wrecking 

trains), 1993 (relating to terrorist attacks and other 

acts of violence against mass transportation systems), 

2155 (relating to destruction of national defense materials, premises, or utilities), 2156 (relating to national 

defense material, premises, or utilities), 2280 (relating 

to violence against maritime navigation), 2281 (relating to violence against maritime fixed platforms), 2332 

(relating to certain homicides and other violence 

against United States nationals occurring outside of 

the United States), 2332a (relating to use of weapons 

of mass destruction), 2332b (relating to acts of terrorism transcending national boundaries), 2332f (relating to bombing of public places and facilities), 2332g 

(relating to missile systems designed to destroy aircraft), 2332h (relating to radiological dispersal devices), 2339 (relating to harboring terrorists), 2339A 

(relating to providing material support to terrorists), 

2339B (relating to providing material support to terrorist organizations), 2339C (relating to financing of 

terrorism, 2339D (relating to military-type training 

from a foreign terrorist organization), or 2340A (relating to torture) of this title; 

* * * * * * *

CHAPTER 119—WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL 

COMMUNICATIONS 

* * * * * * *

§ 2516. Authorization for interception of wire, oral, or electronic communications 

(1) The Attorney General, Deputy Attorney General, Associate 

Attorney General, or any Assistant Attorney General, any acting 

Assistant Attorney General, or any Deputy Assistant Attorney 

General or acting Deputy Assistant Attorney General in the Criminal Division specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction 

for, and such judge may grant in conformity with section 2518 of 

this chapter an order authorizing or approving the interception of 

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tion, or a Federal agency having responsibility for the investigation 

of the offense as to which the application is made, when such interception may provide or has provided evidence of—

(a) * * *

* * * * * * *

(c) any offense which is punishable under the following sections of this title: section 37 (relating to violence at international airports), section 175b (relating to biological agents or 

toxins) section 201 (bribery of public officials and witnesses), 

section 215 (relating to bribery of bank officials), section 224 

(bribery in sporting contests), subsection (d), (e), (f), (g), (h), or 

(i) of section 844 (unlawful use of explosives), section 1032 (relating to concealment of assets), section 1084 (transmission of 

wagering information), section 751 (relating to escape), section 

832 (relating to nuclear and weapons of mass destruction 

threats), section 842 (relating to explosive materials), section 

930 (relating to possession of weapons in Federal facilities), section 1014 (relating to loans and credit applications generally; 

renewals and discounts), section 1114 (relating to officers and 

employees of the United States), section 1116 (relating to protection of foreign officials), sections 1361–1363 (relating to damage 

to government buildings and communications), section 1366 (relating to destruction of an energy facility), sections 1503, 1512, 

and 1513 (influencing or injuring an officer, juror, or witness 

generally), section 1510 (obstruction of criminal investigations), 

section 1511 (obstruction of State or local law enforcement), 

section 1591 (sex trafficking of children by force, fraud, or coercion), section 1751 (Presidential and Presidential staff assassination, kidnapping, and assault), section 1951 (interference 

with commerce by threats or violence), section 1952 (interstate 

and foreign travel or transportation in aid of racketeering enterprises), section 1958 (relating to use of interstate commerce 

facilities in the commission of murder for hire), section 1959 

(relating to violent crimes in aid of racketeering activity), section 1954 (offer, acceptance, or solicitation to influence operations of employee benefit plan), section 1955 (prohibition of 

business enterprises of gambling), section 1956 (laundering of 

monetary instruments), section 1957 (relating to engaging in 

monetary transactions in property derived from specified unlawful activity), section 659 (theft from interstate shipment), 

section 664 (embezzlement from pension and welfare funds), 

section 1343 (fraud by wire, radio, or television), section 1344 

(relating to bank fraud), section 1993 (relating to terrorist attacks against mass transportation), sections 2155 and 2156 (relating to national-defense utilities), sections 2280 and 2281 (relating to violence against maritime navigation), sections 2251 

and 2252 (sexual exploitation of children), section 2251A (selling or buying of children), section 2252A (relating to material 

constituting or containing child pornography), section 1466A 

(relating to child obscenity), section 2260 (production of sexually explicit depictions of a minor for importation into the 

United States), sections 2421, 2422, 2423, and 2425 (relating 

to transportation for illegal sexual activity and related 

crimes),sections 2312, 2313, 2314, and 2315 (interstate transportation of stolen property), section 2321 (relating to trafVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00096 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1
93

ficking in certain motor vehicles or motor vehicle parts), section 

2340A (relating to torture), section 1203 (relating to hostage 

taking), section 1029 (relating to fraud and related activity in 

connection with access devices), section 3146 (relating to penalty for failure to appear), section 3521(b)(3) (relating to witness relocation and assistance), section 32 (relating to destruction of aircraft or aircraft facilities), section 38 (relating to aircraft parts fraud), section 1963 (violations with respect to racketeer influenced and corrupt organizations), section 115 (relating to threatening or retaliating against a Federal official), section 1341 (relating to mail fraud), a felony violation of section 

1030 (relating to computer fraud and abuse), section 351 (violations with respect to congressional, Cabinet, or Supreme Court 

assassinations, kidnapping, and assault), section 831 (relating 

to prohibited transactions involving nuclear materials), section 

33 (relating to destruction of motor vehicles or motor vehicle 

facilities), section 175 (relating to biological weapons), section 

175c (relating to variola virus), section 1992 (relating to wrecking trains), a felony violation of section 1028 (relating to production of false identification documentation), section 1425 (relating to the procurement of citizenship or nationalization unlawfully), section 1426 (relating to the reproduction of naturalization or citizenship papers), section 1427 (relating to the 

sale of naturalization or citizenship papers), section 1541 (relating to passport issuance without authority), section 1542 (relating to false statements in passport applications), section 

1543 (relating to forgery or false use of passports), section 1544 

(relating to misuse of passports), or section 1546 (relating to 

fraud and misuse of visas, permits, and other documents); 

* * * * * * *

(p) a felony violation of section 1028 (relating to production 

of false identification documents), section 1542 (relating to 

false statements in passport applications), section 1546 (relating to fraud and misuse of visas, permits, and other documents, section 1028A (relating to aggravated identity theft)) of 

this title or a violation of section 274, 277, or 278 of the Immigration and Nationality Act (relating to the smuggling of 

aliens); or 

(q) any criminal violation of section 229 (relating to chemical 

weapons); or sections 2332, 2332a, 2332b, 2332d, 2332f, 2332g, 

2332h 2339, 2339A, 2339B, or 2339C 2339D of this title (relating to terrorism); or 

* * * * * * *

§ 2517. Authorization for disclosure and use of intercepted 

wire, oral, or electronic communications 

(1) * * *

* * * * * * *

(6) Any investigative or law enforcement officer, or attorney for 

the Government, who by any means authorized by this chapter, 

has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose 

such contents to any other Federal law enforcement, intelligence, 

94

protective, immigration, national defense, or national security official to the extent that such contents include foreign intelligence or 

counterintelligence (as defined in section 3 of the National Security 

Act of 1947 (50 U.S.C. 401a)), or foreign intelligence information 

(as defined in subsection (19) of section 2510 of this title), to assist 

the official who is to receive that information in the performance 

of his official duties. Any Federal official who receives information 

pursuant to this provision may use that information only as necessary in the conduct of that person’s official duties subject to any 

limitations on the unauthorized disclosure of such information. 

Within a reasonable time after a disclosure of the contents of a communication under this subsection, an attorney for the Government 

shall file, under seal, a notice with a judge whose order authorized 

or approved the interception of that communication, stating the fact 

that such contents were disclosed and the departments, agencies, or 

entities to which the disclosure was made.

* * * * * * *

CHAPTER 121—STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACCESS 

* * * * * * *

§ 2702. Voluntary disclosure of customer communications or 

records 

(a) * * *

* * * * * * *

(d) REPORT.—On an annual basis, the Attorney General shall 

submit to the Committees on the Judiciary of the House and the 

Senate a report containing—

(1) the number of accounts from which the Department of 

Justice has received voluntary disclosures under subsection 

(b)(8); and 

(2) a summary of the basis for disclosure in those instances 

where—

(A) voluntary disclosure under subsection (b)(8) was 

made to the Department of Justice; and 

(B) the investigation pertaining to those disclosures was 

closed without the filing of criminal charges.

* * * * * * *

PART II—CRIMINAL PROCEDURE 

* * * * * * *

CHAPTER 205—SEARCHES AND SEIZURES 

* * * * * * *

§ 3103a. Additional grounds for issuing warrant 

(a) * * *

(b) DELAY.—With respect to the issuance of any warrant or court 

order under this section, or any other rule of law, to search for and 

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nal offense in violation of the laws of the United States, any notice 

required, or that may be required, to be given may be delayed if—

(1) * * *

* * * * * * *

(3) the warrant provides for the giving of such notice within 

a reasonable period øof its¿ , which shall not be more than 180 

days, after its execution, which period may thereafter be extended for additional periods of not more than 90 days each by 

the court for good cause shown. 

* * * * * * *

MARKUP TRANSCRIPT

BUSINESS MEETING 

JULY 13, 2005

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., in Room 

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [Chairman of the Committee] presiding. 

Chairman SENSENBRENNER. The Committee will be in order. A 

working quorum is present, and without objection, the Chair is authorized to declare recesses of the Committee during consideration 

of noticed bills. Hearing none, so ordered. 

Pursuant to notice, I now call——

Mr. WATT. Mr. Chairman, we are having trouble hearing you. 

Chairman SENSENBRENNER. Excuse me. Pursuant to notice, I 

now call up the bill H.R. 3199, the ‘‘USA PATRIOT and Terrorism 

Prevention Reauthorization Act of 2005,’’ for purposes of markup 

and move its favorable recommendation to the House. Without objection, the bill will be considered as read and open for amendment 

at any point. Hearing no objection, so ordered. 

[The bill, H.R. 3199, follows:] 

96

1

I

109TH CONGRESS

1ST SESSION H. R. 3199

To extend and modify authorities needed to combat terrorism, and for other

purposes.

IN THE HOUSE OF REPRESENTATIVES

JULY 11, 2005

Mr. SENSENBRENNER introduced the following bill; which was referred to the

Committee on the Judiciary, and in addition to the Select Committee on

Intelligence (Permanent Select), for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions

as fall within the jurisdiction of the committee concerned

A BILL

To extend and modify authorities needed to combat

terrorism, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘USA PATRIOT and

5 Terrorism Prevention Reauthorization Act of 2005’’.

6 SEC. 2. REFERENCES TO USA PATRIOT ACT.

7 A reference in this Act to the USA PATRIOT ACT

8 shall be deemed a reference to the Uniting and Strength9 ening America by Providing Appropriate Tools Required


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•HR 3199 IH

1 to Intercept and Obstruct Terrorism (USA PATRIOT

2 ACT) Act of 2001.

3 SEC. 3. REPEAL OF USA PATRIOT ACT SUNSET PROVISION.

4 Section 224 of the USA PATRIOT ACT is repealed.

5 SEC. 4. REPEAL OF SUNSET PROVISION RELATING TO INDI6 VIDUAL TERRORISTS AS AGENTS OF FOR7 EIGN POWERS.

8 Section 6001 of the Intelligence Reform and Ter9 rorism Prevention Act of 2004 (Public Law 108–458; 118

10 Stat. 3742) is amended by—

11 (1) striking subsection (b); and

12 (2) striking ‘‘(a)’’ and all that follows through

13 ‘‘Section’’ and inserting ‘‘Section’’.

14 SEC. 5. REPEAL OF SUNSET PROVISION RELATING TO SEC15 TION 2332B AND THE MATERIAL SUPPORT

16 SECTIONS OF TITLE 18, UNITED STATES

17 CODE.

18 Section 6603 of the Intelligence Reform and Ter19 rorism Prevention Act of 2004 (Public Law 108–458; 118

20 Stat. 3762) is amended by striking subsection (g).

21 SEC. 6. SHARING OF ELECTRONIC, WIRE, AND ORAL INTER22 CEPTION INFORMATION UNDER SECTION

23 203(B) OF THE USA PATRIOT ACT.

24 Section 2517(6) of title 18, United States Code, is

25 amended by adding at the end the following: ‘‘Within a


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3

•HR 3199 IH

1 reasonable time after a disclosure of the contents of a

2 communication under this subsection, an attorney for the

3 Government shall file, under seal, a notice with a judge

4 whose order authorized or approved the interception of

5 that communication, stating the fact that such contents

6 were disclosed and the departments, agencies, or entities

7 to which the disclosure was made.’’.

8 SEC. 7. DURATION OF FISA SURVEILLANCE OF NON-UNITED

9 STATES PERSONS UNDER SECTION 207 OF

10 THE USA PATRIOT ACT.

11 (a) ELECTRONIC SURVEILLANCE.—Section 105(e) of

12 the Foreign Intelligence Surveillance Act (50 U.S.C.

13 1805(e)), is amended—

14 (1) in paragraph (1)(B), by striking ‘‘, as de15 fined in section 101(b)(1)(A)’’ and inserting ‘‘who is

16 not a United States person’’; and

17 (2) in subsection (2)(B), by striking ‘‘as defined

18 in section 101(b)(1)(A)’’ and inserting ‘‘who is not

19 a United States person’’.

20 (b) PHYSICAL SEARCH.—Section 304(d) of such Act

21 (50 U.S.C. 1824(d)) is amended—

22 (1) in paragraph (1)(B), by striking ‘‘as defined

23 in section 101(b)(1)(A)’’ and inserting ‘‘who is not

24 a United States person’’; and


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•HR 3199 IH

1 (2) in paragraph (2), by striking ‘‘as defined in

2 section 101(b)(1)(A)’’ and inserting ‘‘who is not a

3 United States person’’.

4 (c) PEN REGISTERS, TRAP AND TRACE DEVICES.—

5 Section 402(e) of such Act (50 U.S.C. 1842(e)) is

6 amended—

7 (1) by striking ‘‘(e) An’’ and inserting ‘‘(e)(1)

8 Except as provided in paragraph (2), an’’; and

9 (2) by adding at the end the following new

10 paragraph:

11 ‘‘(2) In the case of an application under subsection

12 (c) where the applicant has certified that the information

13 likely to be obtained is foreign intelligence information not

14 concerning a United States person, an order, or an exten15 sion of an order, under this section may be for a period

16 not to exceed one year.’’.

17 SEC. 8. ACCESS TO CERTAIN BUSINESS RECORDS UNDER

18 SECTION 501 OF FISA UNDER SECTION 215 OF

19 THE USA PATRIOT ACT.

20 (a) ESTABLISHMENT OF RELEVANCE STANDARD.—

21 Subsection (b)(2) of section 501 of the Foreign Intel22 ligence Surveillance Act of 1978 (50 U.S.C. 1861), is

23 amended by striking ‘‘to obtain’’ and all that follows and

24 inserting ‘‘and that the information likely to be obtained

25 from the tangible things is reasonably expected to be (A)


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•HR 3199 IH

1 foreign intelligence information not concerning a United

2 States person, or (B) relevant to an ongoing investigation

3 to protect against international terrorism or clandestine

4 intelligence activities.’’.

5 (b) CLARIFICATION OF JUDICIAL DISCRETION.—

6 Subsection (c)(1) of such section is amended to read as

7 follows:

8 ‘‘(c)(1) Upon an application made pursuant to this

9 section, if the judge finds that the application meets the

10 requirements of subsections (a) and (b), the judge shall

11 enter an ex parte order as requested, or as modified, ap12 proving the release of records.’’.

13 (c) AUTHORITY TO DISCLOSE TO ATTORNEY.—Sub14 section (d) of such section is amended to read as follows:

15 ‘‘(d)(1) No person shall disclose to any person (other

16 than a qualified person) that the United States has sought

17 or obtained tangible things under this section.

18 ‘‘(2) An order under this section shall notify the per19 son to whom the order is directed of the nondisclosure re20 quirement under paragraph (1).

21 ‘‘(3) Any person to whom an order is directed under

22 this section who discloses that the United States has

23 sought to obtain tangible things under this section to a

24 qualified person in response to the order shall inform such

25 qualified person of the nondisclosure requirement under


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1 paragraph (1) and that such qualified person is also sub2 ject to such nondisclosure requirement.

3 ‘‘(4) A qualified person shall be subject to any non4 disclosure requirement applicable to a person to whom an

5 order is directed under this section in the same manner

6 as such person.

7 ‘‘(5) In this subsection, the term ‘qualified person’

8 means—

9 ‘‘(A) any person necessary to produce the tan10 gible things pursuant to an order under this section;

11 or

12 ‘‘(B) an attorney to obtain legal advice in re13 sponse to an order under this section.’’.

14 (d) JUDICIAL REVIEW.—

15 (1) PETITION REVIEW PANEL.—Section 103 of

16 the Foreign Intelligence Surveillance Act of 1978

17 (50 U.S.C. 1803) is amended by adding at the end

18 the following new subsection:

19 ‘‘(e)(1) Three judges designated under subsection (a)

20 who reside within 20 miles of the District of Columbia,

21 or if all of such judges are unavailable, other judges of

22 the court established under subsection (a) as may be des23 ignated by the Presiding Judge of such court (who is des24 ignated by the Chief Justice of the United States from

25 among the judges of the court), shall comprise a petition


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1 review panel which shall have jurisdiction to review peti2 tions filed pursuant to section 501(f)(1).

3 ‘‘(2) Not later than 60 days after the date of the en4 actment of the USA PATRIOT and Terrorism Prevention

5 Reauthorization Act of 2005, the court established under

6 subsection (a) shall develop and issue procedures for the

7 review of petitions filed pursuant to section 501(f)(1) by

8 the panel established under paragraph (1). Such proce9 dures shall provide that review of a petition shall be con10 ducted ex parte and in camera and shall also provide for

11 the designation of an Acting Presiding Judge.’’.

12 (2) PROCEEDINGS.—Section 501 of the Foreign

13 Intelligence Surveillance Act of 1978 (50 U.S.C.

14 1861) is further amended by adding at the end the

15 following new subsection:

16 ‘‘(f)(1) A person receiving an order to produce any

17 tangible thing under this section may challenge the legal18 ity of that order by filing a petition in the panel estab19 lished by section 103(e)(1). The Presiding Judge shall

20 conduct an initial review of the petition. If the Presiding

21 Judge determines that the petition is frivolous, the Pre22 siding Judge shall immediately deny the petition and

23 promptly provide a written statement of the reasons for

24 the determination for the record. If the Presiding Judge

25 determines that the petition is not frivolous, the Presiding


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8

•HR 3199 IH

1 Judge shall immediately assign the petition to one of the

2 judges serving on such panel. The assigned judge shall

3 promptly consider the petition in accordance with proce4 dures developed and issued pursuant to section 103(e)(2).

5 The judge considering the petition may modify or set aside

6 the order only if the judge finds that the order does not

7 meet the requirements of this section or is otherwise un8 lawful. If the judge does not modify or set aside the order,

9 the judge shall immediately affirm the order and order the

10 recipient to comply therewith. A petition for review of a

11 decision to affirm, modify, or set aside an order by the

12 United States or any person receiving such order shall be

13 to the court of review established under section 103(b),

14 which shall have jurisdiction to consider such petitions.

15 The court of review shall immediately provide for the

16 record a written statement of the reasons for its decision

17 and, on petition of the United States or any person receiv18 ing such order for writ of certiorari, the record shall be

19 transmitted under seal to the Supreme Court, which shall

20 have jurisdiction to review such decision.

21 ‘‘(2) Judicial proceedings under this subsection shall

22 be concluded as expeditiously as possible. The judge con23 sidering a petition filed under this subsection shall provide

24 for the record a written statement of the reasons for the

25 decision. The record of proceedings, including petitions


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•HR 3199 IH

1 filed, orders granted, and statements of reasons for deci2 sion, shall be maintained under security measures estab3 lished by the Chief Justice of the United States in con4 sultation with the Attorney General and the Director of

5 National Intelligence.

6 ‘‘(3) All petitions under this subsection shall be filed

7 under seal, and the court, upon the government’s request,

8 shall review any government submission, which may in9 clude classified information, as well as the government’s

10 application and related materials, ex parte and in cam11 era.’’.

Æ


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Chairman SENSENBRENNER. The Chair now recognizes himself 

for 5 minutes to explain the bill. 

Today we are marking up H.R. 3199, the ‘‘USA PATRIOT and 

Terrorism Prevention Reauthorization Act of 2005,’’ in the wake of 

deadly and tragic terrorist attacks. Last week, innocent people in 

London were murdered in a series of coordinated attacks executed 

with ruthless precision. And last year, Spain was victimized by 

similar acts of terrorism directed at mass transit. We pray for the 

innocent victims and their families of these recent attacks and 

stand firmly with them in their time of grief. 

Though the terrorists’ goal is to shake the foundation of our democracies, these heinous acts have only strengthened our resolve 

to defeat them. I believe that both Congress and the Bush administration deserve credit for reacting quickly to take the terrorist 

threat head on by providing the hard-working men and women of 

law enforcement, the intelligence community, and our armed services with the tool they need to prevent another attack here at 

home. The PATRIOT Act was one important initiative. 

While many, including myself, continue to be wary of the Government having any more authority than absolutely necessary, we 

must view attacks as an important reminder that the specter of 

terrorism remains a clear and present danger to free nations 

around the world, and that we are still very much at war against 

an enemy that will do anything in its power to kill innocent citizens. 

I strongly believe that we must not take any steps that might 

compromise the ability of law enforcement to thwart future acts of 

terrorism. Accordingly, the legislation that I have introduced and 

we consider here today will permanently extend the important 

antiterrorism tools contained in the PATRIOT Act. 

This bill is based upon 4 years of extensive oversight consisting 

of hearing testimony, Inspector General reports, briefings, and 

oversight letter. The materials on the left side of the clerk’s table 

over there show the Committee’s efforts to engage in aggressive 

oversight. Since April of this year alone, the Committee has heard 

testimony from 35 witnesses during 11 hearings on the PATRIOT 

Act. That testimony and oversight has demonstrated that the PATRIOT Act has been an effective tool against terrorists as well as 

criminals intent on harming innocent people and, therefore, deserves to be extended permanently, subject to several modifications 

contained in the bill. 

While there should continue to be a healthy public debate on how 

best to ensure the safety of our citizens, the security of the American people should not be subject to arbitrary expiration dates and 

should not provide an excuse for divisive partisan debates or political fundraising. To address concerns that judicial—judicial oversight is necessary when criminal wiretap information was shared 

with the intelligence community, the bill would amend current law 

to require that an officer or attorney who makes a disclosure under 

this subsection within a reasonable time after that disclosure notify 

the court that issued the wiretap order that such information was 

shared. 

Based upon concerns expressed by the Commission on Weapons 

of Mass Destruction, the bill extends the duration of the Foreign 

Intelligence Surveillance Act order for non-United States persons. 

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DOJ estimates that the enactment of Section 207 has saved nearly 

60,000 attorney hours or 30 lawyers a year’s worth of work. 

Finally, this bill addresses Section 215, which has been inaccurately characterized by many and, as a result, has unnecessarily 

caused much public consternation. While I recognize the good intentions of those voting to limit the authority of Section 215, I am 

concerned that limitations only make Americans more vulnerable 

to terrorism. 

This bill amends Section 215 of the PATRIOT Act to clarify that 

the information likely to be obtained is reasonably expected to be 

foreign intelligence information not concerning a U.S. person or information relevant to an ongoing investigation to protect against 

international terrorism or clandestine intelligence activities. 

The legislation would also clarify that a FISA 215 order may be 

challenged and that a recipient of a 215 order may consult with the 

lawyer and the appropriate people necessary to respond to the 

order. 

Finally, the bill expressly clarifies that an order will only be 

issued if the judge finds that the requirements have been met and 

sets up a judicial review process that authorizes the judge to set 

aside or affirm a 215 order has been changed. 

As Chairman of this Committee, I have made every effort to 

strike an appropriate balance between liberty and security. This 

bill reflects this balance and is the product of comprehensive and 

bipartisan legislative consideration. I urge that the bill be approved, and I recognize the gentleman from Michigan, Mr. Conyers, 

for an opening statement. 

Mr. CONYERS. Thank you, Mr. Chairman, and I’m happy to see 

my colleagues back after the strenuous All Star Game in Detroit 

yesterday evening, which required me to get up a 4 o’clock. But 

might I ask unanimous consent for the gentlelady from Texas, Ms. 

Jackson Lee, to speak for 1 minute out of order because she is 

going to be leaving to return there for some very important activity 

that’s going on. 

Chairman SENSENBRENNER. Without objection. 

Mr. CONYERS. I thank you. 

Ms. JACKSON LEE. This is a very important day. I thank you very 

much, Mr. Conyers and Mr. Chairman. Because of my 10-year 

membership on the Space and Aeronautics Subcommittee of the 

Science Committee, I will be attending the restoration of human 

Space Shuttle flight in Florida today and will be in and out and 

not at my desk. I recognize that our Nation is looking at a very important step, and today, of course, that step is looking at the reauthorization of the PATRIOT Act. 

I look forward to the debate in the days to come, and I remind 

my colleagues that I know that this is a Nation of laws, but it is 

also a Nation of liberty, and the PATRIOT Act must reflect that 

liberty. 

I thank my colleagues, and I ask unanimous consent that any additional statement may be put into the record for this Committee. 

I yield back. 

[The prepared statement of Ms. Jackson Lee follows:]

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Chairman SENSENBRENNER. Without objection, and the Chair 

will reset the clock for the gentleman from Michigan, who is recognized for 5 minutes. 

Mr. CONYERS. Thank you, Mr. Chairman. 

Members of the Committee, we begin the important reauthorization of the PATRIOT Act, but I don’t think this discussion can proceed correctly unless we acknowledge that the PATRIOT Act that 

the Committee passed 36-0 was suspended and pulled out of the 

Rules Committee and replaced with a bill that no one on the Committee that I know of had seen before it came from the Rules Committee. So we’re working under an extremely serious abuse of process on a measure of this magnitude. 

Nevertheless, my comments divide into three categories: first of 

all, there’s the 16 sunset provisions which we are called to re-examine; the second are problems with the PATRIOT Act that were not 

the object of sunset provisions, some of which we were afforded 

hearings, at least one, maybe two, to deal with these problems with 

the PATRIOT Act; and the third category that I would bring to 

your attention, my colleagues, is the abuses of process that are not 

within the PATRIOT Act but could easily be confused for being 

part of the PATRIOT Act, some because of the secrecy of the way 

some of these things are handled by the administration, the Department of Justice, the FBI. Sometimes you can’t tell whether it’s 

PATRIOT Act or not. 

So let me just point out a couple of the problems in the 

sunsetting provisions. Section 206 and 215 leap out at us as we review this matter. The roving wiretaps, Section 206, which allows 

surveillance orders which specify neither person nor place to be 

surveilled. It’s a roving wiretap, a John Doe roving wiretap, and we 

essentially do not address this measure to my satisfaction. 

The second matter is the Section 215 that allows the FBI to get 

an order, a secret order, for anything from anyone whenever they 

ask a secret court. The bill has a convoluted proposal that falls far 

short of satisfactory protecting the civil liberties of our citizenry. 

Now, within the PATRIOT Act itself, I bring your attention to 

the material support statute which makes criminals out of people 

who give money to charities or volunteer their services with no intention to ever help terrorists, and if it turns out that there is a 

mistake made, this helps them get prosecuted. I object to this. 

Section 213, the infamous sneak-and-peek provision, which gives 

unprecedented authority to the Federal Bureau of Investigation to 

go into a citizen’s home or business without telling him or her for 

indefinite periods of time. The bill does not satisfactorily address 

this matter. 

And then there is the national security letters, which have no judicial review, compel people to turn over sensitive records, and 

gags them from even discussing their situation with a lawyer. 

We also have the problem of administrative subpoenas. Administrative subpoenas circuit—get around the regular process of subpoenas in which a court reviews them, and they’re issued by the 

Department of Justice. And so I think this is a very big problem. 

May I point out in closing that the——

Chairman SENSENBRENNER. The gentleman’s time has expired 

and without objection is recognized for an additional minute. 

Mr. CONYERS. I thank the Chair. 

116

There are some non-PATRIOT Act abuses that are still—that 

should be the subject of our concerns, and one is the abuse and torture of detainees at at least three places in the Western hemisphere, and other places, actually, of violence, abuse, harassment, 

which violates the Geneva Convention and the Convention Against 

Torture. 

Then we have the abuse of the immigration system to deny due 

process rights and indefinitely detain people within the borders; 

the use of racial profiling, which has rounded up thousands of Middle Eastern and Muslim men with no known effect of preventing 

terrorism; weeks, months later, they are released. They’re frequently held incommunicado from their family or counsel. And, finally, the abuse of the material witness statute to detain those who 

the Department may not having anything else to hold them on, and 

so they hold them as a material witness. 

All of these are issues I hope we will be able to consider in the 

course of this markup, and I thank the Chair for the additional 

time. 

Chairman SENSENBRENNER. The time of the gentleman has once 

again expired. Without objection, all members may insert opening 

statements in the record at this point. 

Are there amendments? 

Mr. SCOTT. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Virginia, for 

what purpose do you seek recognition? 

Mr. SCOTT. Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Chairman, recently I wrote a letter complaining about having a full Committee markup without a hearing on the bill or a 

Subcommittee mark. As the gentleman from Michigan has pointed 

out, the last time we considered the PATRIOT Act, we considered 

a bill, did hard work, but after all the hard work had been done, 

they switched versions and we considered on the floor something 

other than what we had considered. 

Here we had extensive hearings in general, but none on the bill 

itself. There’s been no opportunity for the public to have input on 

the bill or to prepare amendments to the bill as introduced. 

Now, it was my understanding from the Chairman of the Subcommittee that we would have hearings on the bill, and we wrote 

a letter—I haven’t received a response. Perhaps if I yield to the 

gentleman from North Carolina, he could explain what his understanding was about a hearing on the bill after it had been introduced. Wasn’t it our understanding that there would be a hearing? 

I yield. 

Mr. COBLE. If the gentleman would yield, this is a case of first 

impression because the distinguished gentleman from Virginia and 

I have gotten along very harmoniously and will continue to do so. 

But, Mr. Scott, I don’t recall that. I don’t recall that I indicated any 

subsequent hearing on this bill. 

You will recall, Mr. Scott and colleagues, that our Subcommittee 

hosted nine hearings on this matter. The full Committee, as best 

I recall, Mr. Chairman, hosted two or three, I think three, giving 

a total of 12 hearings. And, Mr. Scott, if that was your impression, 

117

I think you misunderstood me because I don’t recall having said 

that. 

Mr. SCOTT. Well, apparently I did—reclaiming my time, apparently I did misunderstand because it was my understanding that 

we would, after all those hearings, have a hearing on the bill. Obviously that’s not the case, and, Mr. Chairman, I just want to register my complaint that we are not having a hearing or a Subcommittee mark on a bill that is extremely complex and I think 

could benefit from a hearing on the bill so that the public could 

have input and a Subcommittee mark so that many of the more 

controversial areas could be identified. But obviously that’s not 

going to be the case, and we’ll do the best we can under this procedure. 

Mr. NADLER. Mr. Chairman? 

Mr. SCOTT. I yield back. 

Mr. NADLER. Mr. Chairman? 

Chairman SENSENBRENNER. For what purpose does the gentleman from New York seek recognition? 

Mr. NADLER. Strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. NADLER. Thank you. 

Mr. Chairman, I would like to associate—begin by associating 

myself with the remarks of the gentleman from Virginia, and I believe I joined in sending that letter. But I want to go a little further 

or a little differently. 

It’s not just that we haven’t had a hearing on the bill. We had 

extensive hearings, and I want to commend the Chairman and the 

Committee for holding extensive hearings on the general subject 

matter. But the Chairman’s mark, that is to say, the bill that we 

have before us that we’re going to be dealing with, was only made 

available to anyone, I think, late Friday. And as I said 4 years 

ago—and the Chairman and I engaged in a colloquy on the floor 

4 years ago on this subject—this is the kind of bill of a complex 

nature and a sensitive and delicate nature where we are balancing 

a very, very legitimate and pressing and compelling need for promoting the security of the people of this Nation with equally compelling need for preserving the liberties of the people of this Nation. And we have to do a bill that does both and balances it to the 

best of our ability. 

And when the bill came out 4 years ago, this bill was only in 

print, as I recall, Wednesday at 10 o’clock, and we started debating 

at 11 o’clock and voted at 1 o’clock. And I said at that time that 

this is the kind of bill that, because of the sensitive balancing nature, should be available to the public. We should send it out to the 

law schools, to the Civil Liberties Union, to the American Conservative Union, to other people, get their comments on the text, get 

their suggested amendments, not just those that our staff dreams 

up in 2 days, but get—vet this in public, vet this through the various experts around the country, and then go into a markup. 

We were told 4 years ago we didn’t have time, that if we waited 

a week, there would be blood on our hands. The Chairman on the 

floor said it was true that we were doing this in great haste, but 

the ideas in this bill have been around a long time. I said on the 

floor, yeah, the ideas have been around a long time, good ideas, bad 

118

ideas, mediocre ideas, and which ideas have gotten into the bill and 

to what extent wasn’t clear since we haven’t had a chance to read 

it. 

Now, there is no commensurate rush. This bill is not expiring tomorrow. Nothing expires until the end of the year. So I would—I 

had suggested, and I still believe that since nobody saw this mark, 

this bill until Friday night, we should take a week or two—a week 

and mark up the bill a week later so that people in the country at 

large—the Civil Liberties Union, the Conservative Union, the various libertarian groups, the law schools, everybody has a chance to 

look at this text, look at proposed amendments. There’s no reason 

why we shouldn’t make proposed amendments from both sides of 

the aisle available, and get people’s comments. Why should we legislate in a vacuum as if all wisdom resides in this room? 

Now, I will concede a considerable amount of wisdom does reside 

in this room on both sides of the aisle, but not always, though. So 

I would—it may be a little late at this point, but I would hope that 

we wouldn’t finish work on this this week. We really should put it 

off for at least a week because we should give the country a chance 

to express itself—not the entire country but interested parties, law 

school professors, as I have said before, people, law enforcement 

people, civil liberties people, an opportunity to look at this bill, not 

just at the concept, not just at the existing law, but at the bill, and 

at the suggested amendments and express themselves. We might 

get some better ideas, and maybe that would reduce the number 

of amendments that we feel compelled to offer. Maybe it would increase it. Who knows? But we might legislate in a more informed 

manner. 

And since this bill does not expire until the end of the year, 

there’s not a rush. There is plenty of business on the floor to keep 

the floor busy. And, in fact, because of the—I will say, the efficient 

manner in which the leadership of this House has conducted business this year, we’re way ahead of the Senate. We’re going to have 

to wait for them anyway. We’ve done all the appropriations bills. 

They’ve done one or two of them. So we’ve got plenty of time. I 

don’t understand the nature of the rush here and why we can’t 

simply consider this a week before we—before we’re asked to vote 

on these amendments and give people outside this Committee room 

the chance to comment and maybe to give us a little more wisdom. 

I thank the Chairman and I yield back. 

Chairman SENSENBRENNER. The time of the gentleman has expired. 

Are there amendments? The gentleman from California, Mr. 

Lungren. 

Mr. LUNGREN. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Mr. Chairman, I have two amendments. 

Chairman SENSENBRENNER. Will the gentleman from California 

please inform the clerk which amendment he wishes to offer? 

Mr. LUNGREN. It’s the longer of the two. 

Chairman SENSENBRENNER. The clerk will report. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Lungren of 

California. At the appropriate place insert the following: SEC——

. Report. Section 2702 of title 18, United States Code, as amended 

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by section 212 of the US PATRIOT Act, is amended by inserting 

at the end of the following: (d) Report.—On an annual basis, the 

Attorney General shall submit to the Committees on the Judiciary 

of the House and the Senate a report containing—(1) the number 

of accounts from which the Department of Justice has received voluntary disclosures under subsection (b)(8) of this section; and (2) a 

summary of the basis for disclosure in those instances where—(A) 

voluntary disclosure under subsection (b)(8) of this section were 

made to the Department of Justice; and (B) the investigation pertaining to those disclosures was closed without the following of 

criminal charges. 

[The amendment of Mr. Lungren follows:]

120

1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MR. DANIEL E. LUNGREN OF

CALIFORNIA

At the appropriate place insert the following:

1 SEC. ll. REPORT.

2 Section 2702 of title 18, United States Code, as

3 amended by section 212 of the USA PATRIOT Act, is

4 amended by inserting at the end the following:

5 ‘‘(d) REPORT.—On an annual basis, the Attorney

6 General shall submit to the Committees on the Judiciary

7 of the House and the Senate a report containing—

8 ‘‘(1) the number of accounts from which the

9 Department of Justice has received voluntary disclo10 sures under subsection (b)(8) of this section; and

11 ‘‘(2) a summary of the basis for disclosure in

12 those instances where—

13 ‘‘(A) voluntary disclosure under subsection

14 (b)(8) of this section were made to the Depart15 ment of Justice; and

16 ‘‘(B) the investigation pertaining to those

17 disclosures was closed without the filing of

18 criminal charges.’’.


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Chairman SENSENBRENNER. The gentleman from California is 

recognized for 5 minutes. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

Mr. Chairman, this deals with Section 212 of the PATRIOT Act. 

That is the section which permits the disclosure of the content of 

a communication while in electronic storage to Government entities 

by a service provider. Specifically, the provider is allowed to divulge the contents of a communication where the provider reasonably believes that an emergency involving immediate danger of 

death or serious physical injury to any person requires the disclosure of the information without delay. 

Under such exceptional life-threatening circumstances, permitting the disclosure of such information to law enforcement is certainly understandable. I think our hearings showed that. However, 

at the same time, since it also does involve the contents of a communication by a third party, I felt that some accountability is necessary to ensure that this authority is not being abused. 

My amendment provides that the Attorney General shall on an 

annual basis submit to this Committee and our counterpart in the 

other body a report which must reveal the number of accounts from 

which the Department receives disclosures of information under 

Section 212. My amendment would also specifically require the Department to provide a summary of the basis for disclosure in those 

cases where the investigation was closed without the filing of criminal charges. This information I believe should be highly beneficial 

to the Committee, fulfilling our oversight responsibility in the future, and I ask for your support. 

I believe, Mr. Chairman, this is the best way for us to have a 

ready manner of looking at this particular section. In the hearings 

that we had, I found no basis for claiming that there has been 

abuse of this section. I don’t believe on its face it is an abusive section. But I do believe that it could be subject to abuse in the future 

and, therefore, this allows us as Members of Congress to have an 

ability to track this on a regular basis. 

Chairman SENSENBRENNER. Does the gentleman yield back? 

Mr. LUNGREN. I yield back the balance of my time. 

Chairman SENSENBRENNER. The question is on agreeing to the 

amendment offered by the gentleman——

Mr. DELAHUNT. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Massachusetts, 

Mr. Delahunt. 

Mr. DELAHUNT. I support the gentleman’s amendment, and I 

would just ask some questions. 

I did not hear the gentleman refer to any other language other 

than just simply increased reporting to Congress. Is that accurate? 

Mr. LUNGREN. Yes. It requires—it requires a report. No such report is required at the present time for this specific section. 

Mr. DELAHUNT. Can the gentleman inform me whether it provides notice to persons whose communications have been disclosed? 

Mr. LUNGREN. It does not provide notice. I considered that. I considered going to a court. I also considered giving notice. But because of the possibility of a continuing ongoing investigation, I 

thought this was the best way for us to enter into it. We’re the 

other party that looks at it that would hopefully have regular oversight of the Justice Department in this regard. 

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Mr. DELAHUNT. Does it provide in any way, shape, or form for 

after-the-fact review by a court? 

Mr. LUNGREN. No, it does not. I considered that. I thought upon 

consideration this made more sense. 

Mr. DELAHUNT. I would hope that the gentleman would consider 

a conversation with myself and other members who support this 

amendment but feel that there should be additional provisions 

within this—within this particular amendment that would consider 

those particular aspects. 

Mr. LUNGREN. I will consider that, yes, sir. 

Chairman SENSENBRENNER. Does the gentleman yield back? 

The question is on agreeing to the amendment offered by the 

gentleman from California, Mr. Lungren. Those in favor will say 

aye? Opposed, no? 

The ayes appear to have it. The ayes have it. The amendment 

is agreed to. 

Are there further amendments? The gentleman from New York, 

Mr. Nadler. 

Mr. NADLER. Thank you, Mr. Chairman. I call up amendment—

Nadler amendment 001.XML. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Nadler. 

Section A. Strike section (b) of section 8 and insert the following——

Mr. NADLER. I think you have the wrong amendment—oh, no, 

I’m sorry. You’re right. 

Chairman SENSENBRENNER. The clerk will continue to report. 

The CLERK. (b) Applications for orders. Subsection (b) of section 

501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 

1861) is amended—(1) in paragraph (1), by striking ‘‘and’’ at the 

end; (2) in paragraph (2), by striking the period at the end and inserting ‘‘; and’’; and (3) by adding at the end the following——

Mr. CHABOT. Mr. Chairman, I’d ask unanimous consent that the 

amendment be considered as read. 

Chairman SENSENBRENNER. Without objection. The gentleman—

without objection, so ordered. 

[The amendment of Mr. Nadler follows:]

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Chairman SENSENBRENNER. The gentleman from New York is 

recognized for 5 minutes. 

Mr. NADLER. Thank you. Mr. Chairman, this amendment amends 

Section 215 in three ways: Section 215 authorizes the FBI to get 

a secret order for any document or anything, as long as the FBI 

says it is relevant to a terrorist investigation. The FBI would go 

to a—would obtain an order from a secret FISA court to obtain a 

broad array of highly personal records, such as those held by hotels, libraries, doctors, and schools, or any other, quote, tangible 

things. They can do this without probable cause in domestic intelligence investigations to protect against terrorism or spying. 

Under Section 215, this power can be used against literally anyone, even if the person is not suspected of any wrongdoing and is 

completely unconnected to terrorism, espionage, or other criminal 

activity. Section 215 in effect allows the FBI to conduct fishing expeditions against any American citizen innocent of anything. 

This amendment would amend Section 215 in three ways: It 

would restore a standard of individualized suspicion, saying that 

you could get an order if you have—if you can show specific and 

articulable facts leading you to believe that this person is an agent 

of a foreign power or a terrorist. 

Second, it allows the recipient of a Section 215 order to challenge 

the order in court. This is a common-sense protection that is sorely 

lacking in the current law. 

Now, the recipient, not the target—this isn’t good enough, but we 

can’t do the target. Remember, the recipient could be the Internet 

service provider or the library. And the Internet service provider 

may be perfectly happy to provide the records of some subscriber. 

But at least this gives them the ability to go to court when they 

get the order if they think it proper. It doesn’t give the target of 

the order the ability to go to court. He doesn’t know about it. But 

the recipient, if they wish, can challenge it in court. 

And, thirdly, it gives the recipient the ability to petition the court 

to set aside the non-disclosure requirement. Remember, you’re not 

allowed to disclose that you got this order. And this would enable 

the recipient not only to petition the court to oppose the order, but 

to petition the court, if it granted the order, to set aside the nondisclosure requirements if it is—unless it is shown that some adverse result will come from disclosure. In other words, they could 

go to court and say let us tell the target or the public that you gave 

us this order and that we complied with it afterwards, unless someone can—unless the FBI can make a showing that disclosure of 

this would have some adverse effect. 

The Chairman’s bill does allow for a limited version of judicial 

review of Section 215, but that review is very narrow. It would require the recipient to file the claim for review in a specialized court 

which would only meet in Washington. If you were residing or your 

place of business was anywhere in the country other than Washington, this would be highly disadvantageous and maybe impossible, depending upon the expense. This amendment would say you 

could go to court and petition the court in any Federal—not just 

in Washington, D.C. 

I think that allowing a standard of individualized suspicion that 

you say you can only get this information if you say—if you can 

show to the court specific and articulable facts why you believe 

129

that this fellow is a terrorist or an agent of a foreign power, allowing the recipient to challenge the order in court and allowing the 

recipient to ask the court in its discretion to waive the non-disclosure requirement afterward are reasonable amendments which balance the liberty interests that we all have with the security interests that we all have, too. 

I urge the adoption of the amendment and I yield back. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Lungren. 

Mr. LUNGREN. Mr. Chairman, I rise in opposition to the amendment. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. LUNGREN. Mr. Chairman, when you look at this amendment, 

it is obvious that the standard proposed here is much more rigorous than the relevance standard under which Federal grand juries and ordinary criminal investigations can subpoena the same 

records. This particular amendment would prevent the FISA court 

from issuing an order under Section 215 unless the Government 

provides specific and articulable facts giving reasons to believe that 

the person to whom the records pertain is a foreign power or an 

agent of a foreign power. 

As I say, this is a higher standard. The standard would, in my 

judgment, hinder the Government from using a Section 215 order 

to develop evidence at the early stages of an investigation when 

such an order is most useful. 

Consider an example where investigators are tracking down a 

known al Qaeda operative who’s having dinner with three people 

who split the check four ways and each uses a credit card. While 

law enforcement could demonstrate that this information is relevant to an ongoing investigation, they would not be able to demonstrate sufficient and articulable facts that those individuals are 

agents of a foreign power. 

One of the things that we have tried to understand here is that 

this is in the area of attempting to deal with activities before they 

expand into what would be known as a criminal act. This is in the 

nature of trying to stop terrorists before they act, not in the nature 

of a regular criminal investigation which oftentimes is begun when 

you start to examine the crime scene, develop the forensic evidence, 

and then try and prove your case. This is a far different situation, 

and it strikes, I believe, precisely at when a 215 order is most useful. Raising this standard above relevance and requiring specific 

and articulable facts giving reason to believe that the person to 

whom the records pertain is a foreign power or an agent of a foreign power would significantly, therefore, reduce the utility of Section 215. 

Also, with the—I guess it’s the—it’s either in the middle of the 

gentleman’s amendment or towards the end, where he talks about 

allowing this to be challenged in either a U.S. district court or in 

the FISA court, Section 215 orders are issued by the FISA court, 

and any motion to set aside or amend the order I would argue 

should be directed to the issuing court. It is the FISA court that 

is better equipped than district courts to handle sensitive classified 

information at issue in terrorism cases. 

130

So let us remember why we have this section. This section is specifically to deal with the new reality that we have facing us, and 

that is terrorism, with respect to transnational organizations as 

well as a lone wolf, but primarily transnational organizations. And 

that’s why we need the section as it is. I understand the gentleman’s desire to try and raise this standard to specific and 

articulable facts, giving reason, as the words he has. But I believe 

this much more rigorous standard beyond the relevance standard 

would be destructive to the purposes of Section 215. 

Mr. BERMAN. Would the gentleman yield? 

Mr. LUNGREN. I’d be happy to yield. 

Mr. BERMAN. I thank the gentleman for yielding. Is the gentleman’s objection to the first part of the amendment an objection to 

the requirement of specific and articulable facts or that it is limited 

to a suspect—a suspected agent of a foreign power, a suspected terrorist? 

Mr. LUNGREN. I would suggest that it’s in both—both sections. 

You know, I think you need the relevance standard. There was an 

argument about whether or not there should be a relevance standard. I don’t think there’s any doubt there ought to be a relevance 

standard. It is in this bill as an articulated standard. One of the 

questions we had at the hearings at the very beginning was 

shouldn’t there be some relevance requirement. The response we 

heard from the Justice Department was that’s the practice, that’s 

what we require, that’s what the courts require. 

So what the Chairman of the Committee has done is put that relevance standard in here. 

Mr. BERMAN. I appreciate——

Mr. LUNGREN. I believe that’s sufficient. 

Mr. BERMAN. I appreciate that, but let me just—I mean, the gentleman cited a hypothetical, which I have some sympathy for. I 

mean, you do want—to the extent you’re using these, they’re to go 

early and gather information. 

Mr. LUNGREN. Yes. 

Mr. BERMAN. But you talked about people who had associated——

Mr. LUNGREN. Right. 

Mr. BERMAN.—with someone who was suspected of being an 

agent of a foreign power. 

Mr. LUNGREN. Right. 

Mr. BERMAN. I’m just wondering if—is there something a little—

something that is more—more specific than just a simple relevance 

standard but is not so inflexible to keep you from, for instance, subpoenaing—getting—searching and getting a hold of the records, 

whatever they are, of Mohammed Atta’s roommate——

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Mr. BERMAN. I’d ask unanimous consent for one additional 

minute. 

Chairman SENSENBRENNER. Without objection. 

Mr. BERMAN. I just throw out the possibility that there’s something between what you think is appropriate, the relevance standard, based on the hypothetical you cited, and a number of other 

hypotheticals which could allow this FISA warrant or subpoena to 

be—to be utilized and not be limited simply to someone for which 

131

there are specific and articulable facts is an agent of a foreign 

power. 

Mr. LUNGREN. If the gentleman would allow me to respond to 

that, the standard proposed here is really the relevance standard 

under which Federal grand juries in normal circumstances operate. 

What the gentleman’s amendment suggests is that we go above 

that to specific and articulable facts. Between the two, it seemed 

to me the standard that is well recognized has been utilized in the 

grand jury circumstance would be the appropriate one, that the 

system understands, that the prosecutors understand, that the 

courts understand, and that, in fact, has been used. And I thought 

that was the subject of the inquiry we had during the hearings, 

which was the concern people had that we didn’t have any standard, we didn’t have a relevance standard. 

And so in speaking with the gentlemen and women on the other 

side and with the Chairman, it seemed to me, as I talked with the 

Chairman and the staff, that a relevance standard articulated specifically was sufficient for what we needed. 

Mr. BERMAN. Well, I will perhaps pursue this later on. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Mr. CONYERS. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Michigan, Mr. 

Conyers. 

Mr. CONYERS. Mr. Chairman, I——

Chairman SENSENBRENNER. Recognized for 5 minutes. 

Mr. CONYERS. I want to find out if this is correct, and I’d like 

to make sure that the gentleman from New York, Mr. Nadler, is 

following this. Section 215 broadens significantly who such orders 

can be used against, and herein lies the problem. Records prior to 

the PATRIOT Act could only be sought if the Government showed 

that the person whose records are sought is a foreign power or an 

agent of a foreign power. Now the Government need only show that 

the records are sought for a, quote, authorized investigation, unquote. And I ask the gentleman from New York: Is that a part of 

the problem that we have with the 215 as it presently——

Mr. NADLER. Well, yet, the—yes, 215 has been expanded so that 

not only are we relaxing the standard, but we’re relaxing the—

against whom it—against whom it can be issued and for what it 

can be issued. So it becomes a roving fishing expedition generally, 

which is why narrowing the standard to articulable facts, which 

was the standard for all these other things before, is what we’re 

trying to do. 

Mr. LUNGREN. Would the gentleman yield on that point, Mr. 

Conyers? 

Mr. CONYERS. I’d be happy to yield. 

Mr. LUNGREN. See, here’s the concern, and it goes to the—to the 

scenario that the gentleman from California, Mr. Berman, had 

brought up. 

It’s my understanding that if investigators were to learn that 

someone lived with Mohammed Atta prior to the September 11 attacks but knew nothing else about the individual, investigators, 

reasonable investigators I think would want to find out more about 

the individual. They’d want to find out about his credit, his bank, 

his travel, his phone records. And under the specific and 

132

articulable facts standard, the investigators would not be able to 

request this information using Section 215. 

Mr. NADLER. Would the gentleman yield? 

Mr. LUNGREN. Yes. 

Mr. NADLER. Would the gentleman yield? 

Mr. LUNGREN. Well, it’s not my time. 

Mr. CONYERS. I yield. 

Chairman SENSENBRENNER. The time belongs to the gentleman 

from Michigan. 

Mr. CONYERS. I yield. 

Mr. NADLER. Thank you. Well, Mr. Lungren, I think that if someone was a roommate of Mohammed Atta, that would be a specific 

and articulable fact connecting him to an agent of a foreign power. 

Why? Because Mohammed Atta——

Mr. LUNGREN. If the gentleman would yield, it’s my understanding, speaking with—speaking with representatives of the Justice Department, in fact, that would not——

Mr. NADLER. I’m sorry, say that——

Mr. LUNGREN. But they would have to show a relevance standard, but that falls short of specific and articulable facts. The specific and articulable facts standard is too high. 

Now, I will have to tell you, I am relying on those who have pursued cases such as this, and the information I have is that that is 

too high a hurdle. And, again, I would just repeat, when we went 

into this, the whole argument we had when we had the hearing—

I can recall it—was don’t you believe, Representative of the Justice 

Department, we need to have a relevance standard? Would you object to a relevance standard? And the response was, no, in fact, 

that’s how we proceed. We——

Mr. CONYERS. All right. I’d like to yield to the gentleman from 

California. 

Mr. BERMAN. I think your point of limiting it to the agent of a 

foreign power, that has meaning to me, and the problem—the problem with that. I still think there is—you keep citing hypotheticals 

that involve an association with a suspected agent of a foreign 

power, and then say in order to do that, let’s just have a relevance 

standard. 

This isn’t a typical search warrant. This is a FISA search warrant. And I still think—I guess I still think there is a middle 

ground here that provides the Department with the flexibility to 

use FISA in these cases, but that is a little tighter than just a simple relevance standard, but not as limiting as the person has to be 

a suspected agent of a foreign power. And I just—I just want to 

harp on that because I may want to come back to that. 

I mean, I will vote for the gentleman’s amendment because I’m 

unhappy simply with the relevance standard, but I think the right 

place to land on this is somewhere between the two. 

Mr. CONYERS. And so do I. I hope this discussion has supported 

the Nadler amendment, and I return the time. 

Chairman SENSENBRENNER. The time of the gentleman——

Mr. NADLER. Would the gentleman yield for a moment? 

Chairman SENSENBRENNER. The time of the gentleman has expired. 

Mr. DELAHUNT. Mr. Chairman? 

133

Chairman SENSENBRENNER. The gentleman from Massachusetts, 

Mr. Delahunt. 

Mr. DELAHUNT. Yeah, I think I’d like to pose a question to Mr. 

Lungren in terms of the other two aspects of the Nadler amendment relative to opportunity to challenge and disclosure—or elimination of the gag rule after a hearing, because I think what I find 

particularly interesting is that Mr. Nadler reaches a conclusion 

that being a roommate of Mohammed Atta is an articulable fact. 

And your—and I have the same memory. The statement from the 

representative of the Department of Justice that would not constitute an articulable fact says to me that there is a role here, a 

more—a significant role for judicial review than currently exists. If 

either Mr. Nadler or Mr. Lungren would want to comment. 

Mr. LUNGREN. I don’t—I mean, if the gentleman is talking about 

going beyond the FISA court? Is that the suggestion of the gentleman? 

Mr. DELAHUNT. No. 

Mr. LUNGREN. Because that’s the review that takes place now. 

Mr. BERMAN. Would the gentleman yield? 

Mr. DELAHUNT. I’ll yield to the gentleman from California. 

Mr. BERMAN. Here’s the problem. You equate this with a grand 

jury investigation, but those are not secret warrants. Someone has 

a right to challenge them. It is the combination of this secret warrant which the bill now will allow the person who is required to 

deliver the records to learn about. I don’t understand exactly what 

that means, the person who gets the warrant can’t disclose it. If 

the person who gets the warrant isn’t the person who can produce 

the records, somebody’s going to have to learn about it anyway. 

It’s—but since the object of this warrant, the target of this warrant 

is never going to know about it, the notion of requiring something 

more than the standard you’d have for a grand jury is real. 

At the same time, I think people who have—where you can provide specific and articulable facts that someone is the target who 

was associated with the suspected agent of a foreign power, I think 

the Justice Department should have FISA warrants available to 

get those records in this fashion, and that’s—I think that’s the 

whole point, is you can’t just simply put this off as, oh, this is like 

a grand jury investigation, because a grand jury investigation, 

those warrants aren’t secret and the target of it can challenge the 

warrant, and there’s a very established procedure to raise with the 

judiciary in a public way, the question of whether they’re—the warrant was overbroad. 

Here we’re not going to have that for very understandable reasons, so let’s give the FISA court some—a little bit more specificity 

than simply a broad claim of relevance to make its judgment about 

whether or not to issue the warrant. 

Mr. DELAHUNT. Reclaiming my time, I think the point that Mr. 

Berman is taking is the availability of a motion to quash exists in 

terms of a criminal investigation, whereas it does not exist in this 

particular case. 

Mr. LUNGREN. Would the gentleman yield on that? 

Mr. DELAHUNT. I’ll yield. 

Mr. LUNGREN. I would cite page 7, starting at line 16 of the bill. 

Mr. DELAHUNT. Okay. 

134

Mr. LUNGREN. Which says that a person receiving an order to 

produce any tangible thing under this section may challenge the legality of that order by filing a petition in the special panel established by the bill. That’s a special panel under——

Mr. NADLER. Would the gentleman yield? 

Mr. LUNGREN.—the FISA court, and then one would have, if I’m 

not mistaken, the court of review shall immediately provide for the 

record a written statement, and the petition of the individual involved can go directly to the Supreme Court under seal. That’s a 

new provision. 

Mr. DELAHUNT. I understand that. Reclaiming my time, however, 

what we’re talking about is the—it’s the ISP, not the target of the 

investigation. With that, I yield to the gentleman from New York. 

Mr. NADLER. Thank you. 

Mr. Lungren, the fact is that as Mr. Berman said, here the target 

of the investigation never hears about this. In a grand—you can’t 

simply analogize it to a grand jury situation. In the grand jury situation, the target is served—knows about it. He can make the motion to quash. He can make the motion to limit the scope of the 

production—of the order. In this situation, he doesn’t know about 

it. The ISP, who is the—who has the records, or perhaps the library or whoever else, or the travel agency or the credit card company, they get the subpoena, the target doesn’t. The target never 

gets the opportunity to quash, number one. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Mr. NADLER. I ask unanimous consent for an additional 2 minutes on this. 

Chairman SENSENBRENNER. Without objection, the gentleman 

from Massachusetts will be given an additional 2 minutes. 

Mr. DELAHUNT. I yield. I continue to yield to the gentleman from 

New York. 

Mr. NADLER. Thank you. So it is necessary to limit it somewhat. 

Now, I believe that in the situation that you’ve stated before—

and maybe—that if you can—if a known terrorist, a known agent 

of al Qaeda is having lunch and splitting the credit cards with two 

other guys, that’s enough—that’s an articulable fact to connect 

those two guys with him and, therefore, to justify under this standard. But—that’s an articulable fact connecting him to a foreign 

power, because if a foreign power—al Qaeda is considered a foreign 

power. 

But going further than that—but, again, I would be open to—to 

some intermediate standard in this, say a simple standard of relevance, where you can—where you can get virtually anything and 

the target knows nothing about it and can’t move to quash or to 

limit is not sufficient. And I would also say in response to what Mr. 

Lungren said before, the second part of the amendment, it simply 

allows you to go in and allows the recipient of the order, the ISP 

or the library or the credit card company, to oppose the order in 

a Federal court, not just a FISA court. Yes, the FISA court is a 

good court to do that, but the Federal court can also do things in 

secret. And a Federal court is just as able as a FISA court to weigh 

the interests here, but a Federal court has the advantage of not 

being only in Washington, D.C. If you’re a local library or a local 

car rental company in California, it’s very difficult for you to go to 

Washington to move in court to oppose the order. 

135

Mr. DELAHUNT. Reclaiming my time, I’d pose to Mr. Lungren the 

question that was just—the observation and put it in the form of 

a question made by the gentleman from New York, whether he 

would have an objection to that aspect of this particular amendment, the right to challenge in either the FISA or—obviously in an 

in-camera proceeding in a Federal district court. 

Mr. LUNGREN. Well, before I respond—or in trying to respond to 

that, I would just say I’m confused by some of the comments that 

were made——

Chairman SENSENBRENNER. Without objection, the gentleman 

will be given an additional 2 minutes. 

Mr. LUNGREN. Suggesting that a grand jury subpoena is in all or 

most circumstances disclosed to an individual whose records may 

be a subject of the subpoena. There are non-disclosure orders given 

often with respect to those things, and people are not aware of 

what goes on in the grand jury. So I’m trying to figure out——

Mr. DELAHUNT. Right, but my response, reclaiming my time, 

would be that that—under those particular circumstances, there is 

judicial intervention and a non-disclosure order is issued by a court 

in a traditional Title III criminal investigation. That is not the case 

here. What we have is this automatic gag order that is evoked in 

the legislation. 

With that, I continue to yield to the gentleman from New York. 

Mr. NADLER. I think I’ve said what I wanted to say. This has 

three sections. Again, if the specific and articulable facts—and, 

again, this may show why we should have had a hearing specifically on the—on the draft. If that’s too high, maybe we should find 

some other standard intermediate, because a simple standard of 

relevance under these subject—under these circumstances is too 

broad a fishing expedition. And, again, we should allow the recipient of the order to go into any Federal court in camera if the 

court—well, it would have to be in camera. And don’t forget the 

third part of the amendment, which says that you can challenge 

the non-disclosure part of it, too. 

In the interest of not having 50 amendments, I put all three of 

them together. I would be willing to separate if someone——

Chairman SENSENBRENNER. The time of the gentleman from 

Massachusetts has once again expired. The question is on agreeing 

to the amendment offered by the gentleman from New York, Mr. 

Nadler. Those in favor will say aye. Opposed, no? 

The noes appear to have it. 

Mr. NADLER. Mr. Chairman, I ask for the ayes and nays. 

Chairman SENSENBRENNER. A rollcall is requested and will be ordered. Those in favor of the Nadler amendment will as your names 

are called answer aye, those opposed, no, and the clerk will call the 

roll. 

The CLERK. Mr. Hyde? 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. Mr. Goodlatte? 

136

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

[No response.] 

The CLERK. Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. I vote aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

Ms. LOFGREN. No. 

The CLERK. Ms. Lofgren, no. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. Mr. Meehan? 

[No response.] 

137

The CLERK. Mr. Delahunt? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

Mr. SCHIFF. No. 

The CLERK. Mr. Schiff, no. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members in the chamber who wish 

to cast or change their votes? The gentleman from Virginia, Mr. 

Boucher. 

Mr. BOUCHER. Aye. 

The CLERK. Mr. Boucher, aye. 

Chairman SENSENBRENNER. Further members in the chamber 

who wish to cast or change their votes? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 12 ayes and 23 noes. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. 

Are there further amendments? For what purpose does the gentleman from Arizona seek recognition? 

Mr. FLAKE. I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

Mr. FLAKE. Thank you, Mr. Chairman. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Flake. In 

Section 501(d) of the Foreign Intelligence Surveillance Act of 1978, 

as proposed to be amended by Section 8(c), strike ‘‘in response to’’ 

each place it appears and insert ‘‘with respect to.’’

[The amendment of Mr. Flake follows:] 

138

1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MR. FLAKE

In section 501(d) of the Foreign Intelligence Surveillance Act of 1978, as proposed to be amended by section

8(c), strike ‘‘in response to’’ each place it appears and

insert ‘‘with respect to’’.


3199C.AAB
139

Chairman SENSENBRENNER. The gentleman from Arizona is recognized for 5 minutes. 

Mr. FLAKE. Thank you, Mr. Chairman. My amendment simply 

strikes the words ‘‘in response to’’ under 215 in the bill and adds 

the words ‘‘with respect to.’’ This amendment would further clarify 

that a person can disclose to an attorney the receipt of a 215 order 

to not only respond but to challenge the order. While I don’t believe 

that it’s the purpose of this legislation to deny consultation to challenge, I believe that the concerns raised by Section 215 merit more 

specificity in the bill. Thus, this amendment makes it clear that a 

person who has received a 215 order may disclose that information 

to an attorney not just to respond to the order but to challenge the 

order. 

This clarification provides additional protections for librarians, 

bookstore and small business owners to be able to have a clear, viable, legal recourse when faced with a 215 request. It seems clear 

that when we’re talking about possibly allowing the Government to 

access important and sensitive records, we need to make sure that 

people’s rights are explicitly protected in the law. I urge my colleagues to accept the amendment. 

Chairman SENSENBRENNER. Does the gentleman yield back? 

Mr. FLAKE. I yield back. 

Chairman SENSENBRENNER. The question is on agreeing to the 

amendment offered by the gentleman from Arizona, Mr. Flake. 

Those in favor will say aye. Opposed, no? 

The ayes appear to have it. The ayes have it, and the amendment is agreed to. 

Are there further amendments? Are there further amendments? 

The gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. I have an amendment at the desk, number 4. 

Chairman SENSENBRENNER. The clerk will report Scott amendment number 4. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Scott of 

Virginia. Add at the end the following: Section. Limitation on authority to delay notice of search warrants. Section 3103(a) of Title 

18, United States Code, is amended (1) in subsection (b), (A), in 

paragraph (1), by striking ‘‘may have an adverse result as defined 

in Section 2705’’ and inserting ‘‘will endanger the life or physical 

safety of an individual, result in flight from prosecution or the intimidation of a potential witness, result in the destruction or tampering with the evidence sought under the warrant, or seriously 

jeopardize or delay an investigation of international or domestic 

terrorism,’’; and (b)——

Mr. SCOTT. Mr. Chairman, I ask unanimous consent that the 

reading be waived. 

Chairman SENSENBRENNER. Without objection, so ordered. 

[The amendment of Mr. Scott follows:]

140


3199D.eps
141

Chairman SENSENBRENNER. And the gentleman is recognized for 

5 minutes. 

Mr. SCOTT. Mr. Chairman, this amendment eliminates a wide 

open catch-all for sneak-and-peek which says you can get a sneakand-peek warrant if the notification would seriously jeopardize the 

investigation, which is any investigation, or unduly delay a trial, 

any trial. And it also limits the investigation and delay to terrorism 

cases. 

What we’re constantly told is the justification for the sneak-andpeek extraordinary powers is that the Government has to invade 

our privacy and spread information all over town to protect us from 

terrorism. Yet we find that the vast majority of the delayed notice 

cases do not involve terrorism cases at all, but just ordinary street 

crime. 

The amendment also places some reasonable time limit over 

oversights and how long a notice can be delayed and how that 

delay can be extended. With such invasive powers, restrictions, and 

oversight—in restrictions, oversight is crucial. There’s no real remedy or serious disincentive for a mistake or other unwarranted access to someone’s privacy in these sneak-and-peek warrants. So it’s 

crucial that you have some kind of review and oversight mechanisms. 

One of the things it does, for example, is requires the notice after 

7 days, or you can extend that in 30-day increments for as long as 

you want. But you have to show cause for a continued reason to 

delay. We’ve been told that some of these delayed notification indefinitely without end, and there’s no way ever to get notice. I 

think you need to continue after so many years. I think at some 

point notice should be given that your house was searched. That’s 

the normal process, and I hope you’d adopt the amendment. 

Ms. LOFGREN. Would the gentleman yield? 

Mr. SCOTT. I yield. 

Ms. LOFGREN. I commend the gentleman for his amendment, and 

I’d like to point out that this is a good reason why we have a sunset clause. What’s in the bill was written in haste. What the gentleman has written by amendment is tightly drawn and very 

thoughtful and a good example of why the sunset really is important, and I thank the gentleman for yielding. 

Mr. SCOTT. Thank you. I yield back, Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from Arizona, Mr. 

Flake. 

Mr. FLAKE. Thank you, Mr. Chairman. 

I appreciate the concerns that Mr. Scott has, particularly with 

regard to a reasonable period, and I am, in fact, drafting an 

amendment that I hope to offer on the floor that will deal with that 

aspect. And so I do have the same concerns, but I think 7 calendar 

days is probably too short. And so I would love to work with the 

gentleman from Virginia on the floor amendment, if I can. 

Mr. SCOTT. Would the gentleman——

Mr. FLAKE. I yield back——

Mr. SCOTT. Would the gentleman yield? 

Mr. FLAKE. If I haven’t yielded back, I would yield. 

Mr. SCOTT. What time period did you have in your amendment 

that you’ll be considering? 

Mr. FLAKE. I’m still working with others on that. 

142

Mr. SCOTT. And if you’ll continue to yield, I’d point out that the 

7-day period is a presumption that you can delay it 7 days, but you 

can get it extended in 30-day increments forever, so long as you 

can show good cause. 

Mr. FLAKE. I will have a similar provision in my bill, a reasonable——

Mr. SCOTT. Well, with that, Mr. Chairman, I think I’d like to 

work with the gentleman from Arizona, and I’ll withdraw the 

amendment at this point. 

Chairman SENSENBRENNER. The amendment is withdrawn. 

Are there further amendments? The gentlewoman from California, Ms. Waters, for what purpose do you seek recognition? 

Ms. WATERS. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 3199, offered by Ms. Waters of 

California. Add at the end the following: Section—National Security Letters. A national security letter shall not be issued to a 

health insurance company under any of the provisions of law 

amended by Section 505 of the Uniting—Uniting and Strengthening America by providing appropriate tools required to intercept 

and obstruct terrorism, US PATRIOT Act of 2001. 

[The amendment of Ms. Waters follows:] 

143

1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MS. WATERS OF CALIFORNIA

Add at the end the following:

1 SEC. ll. NATIONAL SECURITY LETTERS.

2 A national security letter shall not issue to a health

3 insurance company under any of the provisions of law

4 amended by section 505 of the Uniting and Strengthening

5 America by Providing Appropriate Tools Required to

6 Intercept and Obstruct Terrorism (USA PATRIOT ACT)

7 Act of 2001.


3199E.AAB
144

Chairman SENSENBRENNER. The gentlewoman from California is 

recognized for 5 minutes. 

Ms. WATERS. Thank you very much, Mr. Chairman. 

My amendment would prohibit Section 205, National Security—

National Security Letters, from being applied to help insurance 

companies. Mr. Chairman, as it stands, the Government can issue 

secret national security letters to help insurance companies without any judicial review or approval. Therefore, health insurance 

providers can be compelled to produce highly private and personal 

medical information without any court review. And the target of 

the national security letter would never be notified that such confidential information had been produced. 

Mr. Chairman, we must be concerned and even ask how do medical records pertain to terrorism investigations. What kind of information will this lend to the investigations? There are no clear answers to these questions. Records that are so highly personal and 

that on their face do not seem to bear any significance to terrorism 

investigations should be subject to judicial review so that the Government will be required to prove to a judge why such confidential 

information would be important to such an investigation. 

Mr. Chairman, in a criminal investigation, the Government can 

only obtain such personal records through the issuance of a search 

warrant. However, the Government must first prove that there is 

probable cause that a crime has been or will be committed. 

Mr. Chairman, there is no reason why the Government should be 

allowed to demand the production of such personal private records 

without any judicial review or notice to the target. And though 

my—through my very special amendment, checks and balances can 

be injected into the production of our confidential medical records. 

I just think it needs no further explanation. I think that the average individual would just be opposed to allowing their medical 

records to be accessed without judicial review and without any notice at all at any time to the target of the so-called investigation. 

And I would simply ask for an aye vote and reserve the balance 

of my time. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Lungren. 

Mr. LUNGREN. I rise in opposition to the amendment. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. LUNGREN. The question was posed, Why would health 

records ever be relevant in a terrorism investigation and why 

would you need a national security letter for investigation? Well, 

let’s see. Anthrax, dealing with other biological or chemical agents. 

Someone might be treated for that to gain immunities to that such 

that when they are dealing with those particular contaminants 

they may not be deleteriously affected. 

So I think one of the things we have to keep in mind is what 

is the context of this law. This law is in response to the terrorist 

attacks that we suffered on 9/11. The 9/11 Commission specifically 

said the greatest complaint against the legislative and executive 

branch of the Federal Government was that we failed in a lack of 

creativity, a lack of imagination, in other words, thinking within 

the box instead of outside the box. So I am not as—I am not put 

145

at ease by suggesting that I know all of the potential attempts that 

terrorists might make to attack us. 

Recently, I, along with other members of the Homeland Security 

Committee, had an opportunity to go down and do a day’s review 

at the Center for Disease Control, CDC, which in many ways is responsible for our response to potential attacks such as those I’ve 

mentioned. If that is as great a concern as was expressed to us on 

our review down there, it seems to me for us to create a total exemption here for health records because we can’t anticipate where 

they might be relevant is a step that I don’t think we want to take. 

Mr. GOHMERT. Would the gentleman yield? 

Mr. LUNGREN. I’d be happy to yield to the gentleman from Texas. 

Mr. GOHMERT. Yes, if I might add, as a judge, we constantly saw 

people and these criminals, terrorists that want to hurt other people deal with dangerous elements. They are often injured in trying 

to prepare things to injure others. And these health records could 

be in the right situations—and I saw those as a judge—helpful in 

determining have they been working with these dangerous elements and components that would be used later. They could be 

very helpful. 

I yield back. 

Mr. SCHIFF. Will the gentleman yield? 

Mr. LUNGREN. Yes. 

Mr. SCHIFF. I appreciate the gentleman yielding, and, you know, 

I think that you make a number of good points. But I want to ask 

you one question, and that is, the use of the national security letter 

which has, I think, the least number of safeguards applied to it, because there is no court review, there is no going before a grand 

jury. And I guess my question is: Under what circumstances is it 

necessary to use the extraordinary remedy of a national security 

letter as opposed to going to the FISA court for this information or 

going to the grand jury for this information where there are greater 

checks? When would it be necessary to use the national security 

letter where there is really no oversight? 

Mr. LUNGREN. I am sorry. I was——

Mr. SCHIFF. Let me try again. 

Mr. LUNGREN. I apologize. I’m not showing disrespect to the gentleman. 

Mr. SCHIFF. And my question is not rhetorical. I generally would 

like an answer. And that is, I think that you make a good point 

that in an anthrax investigation or some other biological kind of investigation, that you may need these records. My question though 

is there are several methods of getting them. In a criminal investigation you can go through the grand jury where there’s a check. 

In the FISA Court you need court permission to get it where 

there’s a check. With the national security letter, there is the least 

checks and balances. 

And my question is, why do we need to use the national security 

letter in this context? What kind of circumstances would require us 

to use the extraordinary remedy of a national security letter as opposed to the more traditional approach of going to the grand jury 

or going to a FISA court? 

Mr. LUNGREN. Well, it’s my understanding that these are preliminary investigations before you have probable cause. These are 

investigations that have not arisen to the level of a criminal invesVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00149 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1
146

tigation, so you’re not going to be doing a grand jury investigation. 

They are by their very nature go to the question of national security, and I guess the question the gentleman is asking is why do 

we have these at all? 

I am not the expert in that. I would just say I would not support 

us creating an exemption for them in the—for health records for 

the very reasons I gave. 

Mr. SCHIFF. Will the gentleman yield again? 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Without objection the gentleman will be given an additional 

minute. 

Mr. SCHIFF. I appreciate what you’re saying, but if you’re saying 

that there isn’t probable cause so you can’t get a grand jury subpoena, and there’s no foreign agent or foreign power involved, so 

you can’t go to the FISA court, then what do you have as the basis 

for getting this very personal private record, something not involving foreign power and something less than probable cause? To get 

something that personal like a medical record, I think there should 

be a stronger basis than that. And there may very well be a good 

argument, but I just haven’t heard it yet today, and I’m—if somebody else on the other side of the aisle can answer that question, 

I would be delighted to know. 

Mr. ISSA. If the gentleman would yield? 

Mr. LUNGREN. Yes, I’d be happy to yield. 

Mr. ISSA. I might remind the gentleman from California that in 

2001 when we had an anthrax actual event here, we did not know 

whether it was foreign power, and if—and I don’t know if it was 

done—if there was an evaluation of people’s health records to find 

out if somebody showed the symptoms where they might have either been a victim or in fact a perpetrator, that that would have 

been broad, it would have had no probable cause against them, and 

to the extent that people didn’t have an enzyme or some other indication, nothing further would have happened. It would have been 

the classic example where national security was at stake, thousands of people might have been checked in order to be eliminated 

or to be included, and no further action was taken. 

To me, the anthrax, not scare, but events that we lived through 

would be a good example. 

Mr. SCHIFF. Would the gentleman yield? 

Chairman SENSENBRENNER. The gentleman’s time is again expired. 

Mr. SCHIFF. Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman from California is 

recognized for 5 minutes. 

Mr. SCHIFF. Two points on that. One is—and I’d offer my colleague from California—do you know whether a national security 

letter was ever issued in the anthrax investigation? My guess is 

they probably used the traditional remedies of grand jury subpoenas. And No. 2, there’s not a grand jury in the country that 

would turn down a subpoena in an anthrax investigation of that 

nature. 

So, again, there may be very good reasons why we need a national security letter to get health records, but I’d like to know 

what they are before I have to vote on this, and I still am not quite 

hearing it. I yield back. 

147

Mr. DELAHUNT. Would my friend yield? 

Mr. SCHIFF. I’d be happy to yield to my colleague from Massachusetts. 

Mr. DELAHUNT. I understand the concerns about just simply a 

blanket exemption that would deny the Government the opportunity to examine health records, but I think the point that the 

gentleman is making by inference is that there are no standards 

whatsoever as a result of the PATRIOT Act. It’s my understanding 

that prior to the passage of the PATRIOT Act, specific and 

articulable facts given reason to believe the records pertain to an 

agent of a foreign power was the standard. That, I dare say, given 

the experience that we’ve had, given the hearings that we’ve conducted, ought to be reinserted as part of the issuance of national 

security letters. Give us a standard. That’s what we’re talking 

about here. 

And if any of my colleagues on the other side of the aisle think 

that that is too high a standard, I would like to hear them offer 

a rationale, because in the real world that is simply not a very high 

standard, but it does invoke a oversight, if you will, as opposed 

simply to allow the FBI, based on an assertion, to issue a NSL that 

no one is aware of, and, you know, maybe it requires a little more 

work. But this isn’t about conveniencing Government. It certainly, 

I don’t think, would warrant any delay. A delay would be an impediment. This is about privacy rights, about individual liberties. 

This is not balancing with national security concerns, but it’s not 

a matter of convenience for the Department of Justice. And I think 

that’s what our focus has to remain during the course of our deliberations on the reauthorization of the PATRIOT Act. 

Ms. LOFGREN. Mr. Chairman? 

Mr. DELAHUNT. I’ll yield to the gentlelady from California. 

Ms. LOFGREN. I would just note that we have some options here. 

One is really what the gentleman has said, which is to set out 

standards that we agree are reasonable for the use of these powers 

by the Government or to provide—three are certain elements entitled to enhance privacy, and to fall back on ordinary means to obtain such records. I don’t know if anyone is going to offer later an 

amendment relating to library records or bookstore records, but the 

ability of people to read what they want, to have their health care 

records respected is something that means a lot. 

Now, I’m going to support this amendment because if this 

amendment passes, there are still plenty of ways for prosecutors to 

obtain these records if they can make a case that they’re necessary. 

So I would yield to the gentlelady from California further on that 

point. 

Ms. WATERS. I appreciate that. And I think the discussion that 

we’ve had helps to illuminate why there’s such concern about what 

we do in renewing the PATRIOT Act. This Committee, on PATRIOT Act I, acted in a most responsible way, and we came together to produce the PATRIOT Act, and we took out a lot of the 

problems that were originally identified with the PATRIOT Act because Americans simply said, we want you public policymakers to 

protect us from terrorism, but we do not want you to destroy all 

of our civil liberties. And the’s really the national discussion about 

the PATRIOT Act. Can we produce good public policy that will help 

protect us from terrorism, at the same time not throw all of our 

148

civil liberties out of the window. And this is a prime example of 

that. 

Americans do not want national security letters that would allow 

the Government to simply have access too all of our medical and 

health records without showing probable cause. We have in law the 

means by which this can be done. 

Chairman SENSENBRENNER. The gentleman’s time has expired, 

and without objection will be given an additional minute. 

Ms. WATERS. Thank you very much, Mr. Chairman. 

This can be done with judicial review. And I’m simply saying 

that we use what we have in existing law to obtain those records 

if we can go and show probable cause—and I think any judge 

would support that. I don’t know why we have to throw that out 

the window and have open access to these private and personal 

records without that kind of review. 

So I would simply ask my colleagues to support this amendment. 

I think it is reasonable. I think it is the right thing to do, and I 

think this is what Americans expect of us. 

Chairman SENSENBRENNER. The time of the gentleman has expired. 

The question is on agreeing to the amendment offered by the 

gentlewoman from California, Ms. Waters. Those in favor will say 

aye. 

Opposed, no. 

The ayes appear to have it. 

Mr. GOODLATTE. rollcall. 

Chairman SENSENBRENNER. rollcall is requested by the gentleman from North Carolina. Those in favor of the Waters amendment will, as your names are called, answer aye; those opposed, no, 

and the clerk will call the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

The CLERK. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. Mr. Goodlatte? 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

149

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. Mr. Boucher? 

Mr. BOUCHER. Aye. 

The CLERK. Mr. Boucher, aye. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler? 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. No. 

The CLERK. Ms. Wasserman Schultz, no. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

150

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their vote? Gentleman from Illinois, Mr. Hyde? 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote? 

[No response.] 

Chairman SENSENBRENNER. If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 14 ayes and 23 noes. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. 

Are three further amendments? 

Mr. ISSA. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Issa. 

Mr. ISSA. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 3199 offered by Mr. Issa. At the 

appropriate place in the bill insert the following new section: 

Section - Roving Surveillance Authority Under the Foreign Intelligence Surveillance Act of 1978. 

(a) Inclusion of specific facts in application. Section 105(c)(2)(b) 

of the Foreign Intelligence Surveillance Act of 1978 (50 USC 

105(c)(2)(B), as amended by Section 206 of the USA PATRIOT Act 

is amended by striking——

Chairman SENSENBRENNER. Without objection the amendment is 

considered as read, and the gentleman from California will be recognized for 5 minutes. 

[The amendment of Mr. Issa follows:] 

151

1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MR. ISSA

At the appropriate place in the bill insert the following new section:

1 SECTION ll. ROVING SURVEILLANCE AUTHORITY UNDER

2 THE FOREIGN INTELLIGENCE SURVEIL3 LANCE ACT OF 1978.

4 (a) INCLUSION OF SPECIFIC FACTS IN APPLICA5 TION.—Section 105(c)(2)(B) of the Foreign Intelligence

6 Surveillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)), as

7 amended by section 206 of the USA PATRIOT ACT, is

8 amended by striking ‘‘where the Court finds’’ and insert9 ing ‘‘where the Court finds, based upon specific facts pro10 vided in the application,’’.

11 (b) NOTIFICATION OF SURVEILLANCE OF NEW FA12 CILITY OR PLACE.—Section 105(c)(2) of such Act is

13 amended—

14 (1) in subparagraph (C), by striking ‘‘and’’ at

15 the end;

16 (2) in subparagraph (D), by striking the period

17 at the end and inserting ‘‘; and’’; and

18 (3) by adding at the end the following new sub19 paragraph:


3199F.AAB
152

2

H.L.C.

1 ‘‘(E) that, in the case of electronic surveil2 lance directed at a facility or place that is not

3 known at the time the order is issued, the appli4 cant shall notify a judge having jurisdiction

5 under section 103 within 10 days after elec6 tronic surveillance begins to be directed at a

7 new facility or place, and such notice shall con8 tain a statement of the facts and circumstances

9 relied upon by the applicant to justify the belief

10 that the facility or place at which the electronic

11 surveillance is or was directed is being used, or

12 is about to be used, by the target of electronic

13 surveillance.’’.


3199F.AAC
153

Mr. ISSA. Thank you, Mr. Chairman. On both sides of the aisle 

I think that we all remember, those of us who were here, how important it was to modernize the definition of a wiretap, that in fact 

this section was created because the use of cellular phones, and 

particularly disposing of cellular phones on as often as a daily 

basis, had made the conventional wiretap unusable. In this procedure we felt in October 2001, that we were entering a new phase, 

one that would need oversight. 

Today as part of our oversight during the sunset reconsideration, 

I offer this amendment which deals with the one most vexing issue, 

which is, are we giving people the ability to go on jumping from 

phone to phone beyond the original intent of a roving wiretap? To 

that extent this amendment will require that the intelligence investigators notify the FISA Court within 10 days each time it initiates 

surveillance on a new communication facility pursuant to the 

FISA—I have a terrible time with that, FISA, yeah, thank you, 

FISA as in Issa—roving wiretap. 

Mr. Chairman, I can see that we all understand that these kinds 

of wiretaps can go on for months or years, and commonly do, and 

they may stay with one cellular phone for months on end. However, 

if somebody is disposing of their wiretap every single day, every 10 

days, under my amendment, we would be back in informing the 

court that there was an expansion. This would prevent what many 

have said would be the bugging of all of Los Angeles. Just the opposite, this will give the court constant oversight on what might be 

a very often basis, but I think appropriately so to meet people’s 

concerns, and I would ask on both sides of the aisle, all of us who 

worked on the original legislation, to vote for this perfecting 

amendment. 

And with that, I yield. 

Chairman SENSENBRENNER. The question is on agreeing to the 

amendment offered by the gentleman from California, Mr. Issa. 

Those in favor will say aye. 

Opposed, no. 

The ayes appear to have it. The ayes have it. 

Mr. ISSA. I would ask a recorded vote. 

Chairman SENSENBRENNER. Recorded vote is requested. Those in 

favor of the Issa amendment will, as your names are called, answer 

aye, those opposed, no, and the clerk will call the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

The CLERK. Mr. Coble? 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble, aye. Mr. Smith? 

[No response.] 

The CLERK. Mr. Gallegly? 

Mr. GALLEGLY. Aye. 

The CLERK. Mr. Gallegly, aye. Mr. Goodlatte? 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte, aye. Mr. Chabot? 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, aye. Mr. Lungren? 

Mr. LUNGREN. Aye. 

The CLERK. Mr. Lungren, aye. Mr. Jenkins? 

Mr. JENKINS. Aye. 

154

The CLERK. Mr. Jenkins, aye. Mr. Cannon? 

Mr. CANNON. Aye. 

The CLERK. Mr. Cannon, aye. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

Mr. INGLIS. Aye. 

The CLERK. Mr. Inglis, aye. Mr. Hostettler? 

Mr. HOSTETTLER. Aye. 

The CLERK. Mr. Hostettler, aye. Mr. Green? 

Mr. GREEN. Aye. 

The CLERK. Mr. Green, aye. Mr. Keller? 

Mr. KELLER. Aye. 

The CLERK. Mr. Keller, aye. Mr. Issa? 

Mr. ISSA. Aye. 

The CLERK. Mr. Issa, aye. Mr. Flake? 

Mr. FLAKE. Aye. 

The CLERK. Mr. Flake, aye. Mr. Pence? 

Mr. PENCE. Aye. 

The CLERK. Mr. Pence, aye. Mr. Forbes? 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes, aye. Mr. King? 

Mr. KING. Aye. 

The CLERK. Mr. King, aye. Mr. Feeney? 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney, aye. Mr. Franks? 

Mr. FRANKS. Aye. 

The CLERK. Mr. Franks, aye. Mr. Gohmert? 

Mr. GOHMERT. Aye. 

The CLERK. Mr. Gohmert, aye. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

[No response.] 

The CLERK. Mr. Boucher? 

Mr. BERMAN. Berman is aye. 

The CLERK. Mr. Berman, aye. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. Mr. Weiner? 

155

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman, aye. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their votes? 

[No response.] 

Chairman SENSENBRENNER. If not, the clerk will report. 

Gentleman from Massachusetts, Mr. Delahunt. 

Mr. DELAHUNT. How am I recorded? 

The CLERK. Mr. Chairman, Mr. Delahunt is not recorded. 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. 

Chairman SENSENBRENNER. The clerk will try again to report. 

The CLERK. Mr. Chairman, there are 34 ayes and no noes. 

Chairman SENSENBRENNER. And the amendment is agreed to. 

Are there further amendments? The gentleman from California, 

Mr. Lungren? 

Mr. LUNGREN. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 3199 offered by Mr. Lungren of 

California. 

Add at the end the following: 

Sec. 9 Sunset for Certain Provisions. 

Sections 206 and 215 of the USA PATRIOT Act and the amendments made by those sections, shall cease to have effect on December 31, 2015. 

Chairman SENSENBRENNER. The gentleman from California is 

recognized for 5 minutes. 

[The amendment of Mr. Lungren follows:]

156

Mr. LUNGREN. Mr. Chairman, this is a fairly simple amendment. 

It would put a 10-year sunset on Sections 205 and 215 of the PATRIOT Act. I believe that the sunset provisions in the current law 

have given us an opportunity, a prod, if you will, to look at certain 

sections of the PATRIOT Act in a way that is probably more intense and deeper than we would otherwise have done. Having attended, I believe, all of the Subcommittee hearings on those provisions, as well as the full Committee hearings, I’m satisfied that 

there is no evidence of abuse in the substance of the law, nor abuse 

of civil liberties in the application of the law by the Justice Department during the time that these laws have been in effect. 

Nonetheless, it seems to me that the two most controversial provisions which were sunsetted in the original law are Sections 206, 

the roving wiretap, and Section 215 which deals with business 

records. For that reason, I thought that it would be appropriate for 

us to have a sunset. 

As a supporter of the bill it’s my belief that sunsetting these two 

provisions which have drawn a disproportionate amount of attention, will in fact serve as an assurance to those inside and outside 

of this body of our continued diligence. 

My amendment is not in anyway, I would repeat, intended to be 

a criticism of the implementation of the Act by the administration. 

It is, however, an effort to show the American people that we will 

remain vigilant in reviewing these particular provisions. Even 

some members have said to me that they support provisions such 

as these so long as there is a terrorist threat. None have suggested 

to me that this terrorist threat is going to go away within the next 

several years. As a matter of fact, the President has recently suggested that this is a generational fight because it is a generational 

threat that we face. 

For that reason, it is my believe that a sunset in the year 2015 

is appropriate under the circumstances. It will contribute to the 

continuation of vigorous oversight by this Committee, as well as 

careful and conscientious implementation of this legislation by this 

administration and the administrations to follow. I do not in any 

way wish to suggest that this Committee has been derelict in its 


3199G.eps
157

duty. As a matter of fact, I would congratulate this Committee for 

the work that it has done in providing vigorous oversight. 

But it is my belief that from time to time Congress has not been 

as vigilant as it should be in oversight of a number of different 

matters, and that having this with respect to what I believe are the 

two most controversial aspects of this law, will be of benefit. 

I might say that there are some who have suggested that by even 

offering such amendment, it will be interpreted as criticism of the 

underlying law on my part, or criticism of the administration, or 

criticism of the current Congress. This amendment is not offered 

for that purpose. Rather it is in some ways a tribute to the work 

that has been done by the administration and by this Congress, 

specifically this Committee, in dealing with the very difficult and 

delicate balance that we must strike, and that is to prevent those 

who would wish to destroy us and what we stand for by acts of terror in ensuring that we do not tear up the Constitution in the process of defending ourselves and those we represent. 

With that, I yield back the balance of my time. 

Mr. SCOTT. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Scott? 

Mr. SCOTT. Mr. Chairman, I have an amendment to the—second 

degree amendment to the amendment. 

Chairman SENSENBRENNER. The clerk will report the second degree amendment. 

Mr. SCOTT. No. 7, it’s No. 7. 

The CLERK. An amendment to the Lungren amendment to H.R. 

3199 offered by Mr. Scott. 

Strike ‘‘2015’’ and insert ‘‘2009.’’

Chairman SENSENBRENNER. The gentleman from Virginia is recognized for 5 minutes. 

[The amendment of Mr. Scott follows:]

Mr. SCOTT. Thank you, Mr. Chairman. Mr. Chairman, I support 

the direction the amendment is going in. This second degree 

amendment will change the 10-year sunset to a 4-year sunset. The 

10-year sunset would allow this to go through without review, 

clean through the rest of this administration and the next term of 

the—the term of the President elected in 2008 and almost through 

the term of the person elected in 2012. There are many questions 

that we have. 

As it’s been pointed out, we have rushed through the first passage of the PATRIOT Act, and sometimes these sunsets help you 

get answers to questions that you may ask. For example, Mr. 


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158

Chairman, I’ve just been handed a letter dated July 11th, 2 days 

ago, it was sent 2 days ago, received today, from the Attorney General responding to a question that was asked at a hearing on April 

6th, and now because of—I imagine because of this hearing, we’re 

finally getting an answer to a question. We’ll have questions like 

many of the amendments will address, but I think it’s important 

that we, because of the significant intrusion in civil liberties, that 

we keep an eye on this, and have the power of the sunset to require 

answers to questions. I therefore would ask you to accept a 4-year 

sunset rather than the 10-year sunset in the underlying——

Mr. CONYERS. Would the gentleman yield? 

Mr. SCOTT. I yield to the gentleman from Michigan. 

Mr. CONYERS. I want to thank you for doing this, Mr. Scott, because 10 years is way too long. I mean every decade we take a look 

at this, it will be new Congresses, new Presidents. There could be 

a huge pile building up in the course of a decade. And I think this 

amendment is made real by your amendment to the amendment. 

I support it with great enthusiasm. 

Mr. SCOTT. Thank you. 

Reclaiming my time, Mr. Chairman, as the Ranking Member has 

pointed out, you can go through the next President—through this 

presidential term and another entire presidential term without this 

thing coming up for renewal, and we would think that the next 

President elected in 2008 ought to have the responsibility to respond to some questions we may ask. We don’t know who that 

President may be. 

I yield back. 

Chairman SENSENBRENNER. Does the gentleman from Virginia 

yield back? 

Mr. SCOTT. I yield back. 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman. Mr. Chairman, I 

want to commend the gentleman from California for offering the 

underlying amendment, and I strongly support it. There are a 

number of reasons for having sunset provisions, and I have, and 

many others have supported them in a number of areas, and I 

would like to see them in other areas of our legislation that we 

pass because it provides for more accountability on a part of any 

administration, and because it gives us the opportunity to have it 

automatically come back to us at some point in time to make adjustments. Times change, circumstances change, and when that occurs, it’s appropriate for the Congress to have the initiative to act 

to make those changes and improvements. 

I do not agree with the substitute or the secondary amendment 

offered by the gentleman from Virginia. We’ve just been through a 

period where we’ve had a 4-year sunset, and during that time there 

have been uncovered no abuses on the part of the Justice Department of the provisions that we passed in the original PATRIOT 

Act, and I see no reason to have this on such a short leash. This 

will give us an opportunity to put it over a longer period of time. 

It will help to establish the precedent that we should impose sunsets like this in other areas where we pass legislation. It will empower the Congress in doing so because it will improve our oversight authority, and it will improve our opportunity to make 

159

changes and enhancement as time goes by, but to do it every 4 

years is simply too quickly, and given the fact that we are in a war 

on terror that is going to go on for a long time, I think this is an 

appropriate period of time for us to have a sunset provision. 

And I urge my colleagues to reject the secondary amendment and 

to support the amendment offered by the gentleman from California. 

Chairman SENSENBRENNER. The gentlewoman from California, 

Ms. Waters. 

Ms. WATERS. Thank you very much, Mr. Chairman. 

I rise in support of Mr. Scott’s amendment. I think we all agree 

that there should be sunset provisions. The gentleman just argued 

that this is about making sure we have sunset provisions. He won’t 

find an argument, I don’t think, with any of us on this side of the 

aisle about sunset provisions. It’s just a matter of how many years 

are we talking about? 

This business of fighting terrorism continues to be an evolving 

situation, where we’re all learning more about the various ways in 

which we could be attacked, and the various ways in which we 

could provide more security, and I still think we have a long way 

to go as we look at some of our transportation systems and our 

ports, and I still think that there is public policy to be developed 

that could be very helpful in fighting terrorist as it relates to the 

way that we bring in goods and products from other countries in 

particular. 

So I think it is important for us to have good oversight. Good 

oversight does not mean that you have a sunset provision that’s so 

far out that you don’t do the reviews and make the adjustments 

that you need to make. Good oversight means that you’re constantly looking, you’re constantly reviewing, and I think 4 years is 

a reasonable amount of time. And so I would reject the original 

amendment by my colleague from California, and support the alternative amendment by Mr. Scott because I think it makes more 

sense and it gives us the possibility of giving the kind of oversight 

to this very special era of terrorism——

Mr. CONYERS. Would the gentlelady yield? 

Ms. WATERS. I yield to the gentleman from Michigan. 

Mr. CONYERS. Thank you. I heard it mentioned that this might 

set a bad precedent if we start sunsetting too much. 

Well, we have 16 provisions that are sunsetted in the first PATRIOT Act. This is the first new one that I’ve heard, and this 

would just—this is very critical. I mean if we’re really serious 

about reviewing this, we can review it. Nobody will be hurt if very 

few are revealed. And it also should be remembers that many times 

we can’t even figure out where an abuse has occurred because of 

the general vagueness of the law as it exists right now. So I 

wouldn’t want anybody to take to heart that there have never been 

any provisions of abuse because we don’t know about it. We don’t 

know about any because we don’t have the process to find out 

about any. And so I support the gentlelady from California and the 

gentleman from Virginia. 

Mr. LUNGREN. Mr. Chairman? 

Chairman SENSENBRENNER. The time belongs to the gentlewoman from California. Do you yield back? 

Ms. WATERS. I yield back. 

160

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Lungren. 

Mr. LUNGREN. Mr. Chairman, I reluctantly rise to oppose Mr. 

Scott’s amendment to my amendment because I would so much like 

to see a Scott-Lungren amendment at sometime before I leave this 

House. 

I appreciate that there are differences here, and I understand 

how we’re trying to strike a balance here. I think the point made 

by Mr. Goodlatte is a good one. We’ve just gone through a 4-year 

sunset, and I would have to say we have looked diligently and have 

found no record of abuses. 

It is difficult to figure out what the date is. I’m reminded that 

I have been gone so long that I’m now back here when we’re going 

to be considering a reauthorization of the Voting Rights Act. People 

ought to understand the Voting Rights Act sunsets. I was back 

here in the ’80’s, it was either ’82 or ’84 when we last—’82. So we 

have a sunset that goes 24 or 5 years on that law. And yet there 

are changed circumstances as the gentlelady from California mentioned. There are new things. 

And folks should recall there was a real question when the Ranking Member of the full Committee, when Mr. Hyde, when the 

Chairman of the full Committee and I were all serving back here 

in the ’80’s, there was a question whether the Voting Rights Act 

was going to be reauthorized because of changed circumstances of 

those States which feel the application of the Voting Rights Act, 

and yet we made a decision that it was appropriate. And then 

when we did that, we gave it this 20-some year life with a sunset. 

So the suggestion that a 10-year sunset is irrelevant or somehow 

meaningless, I would reject based on the experience that I’ve seen 

with another major law that we have dealt with. 

And by the way, I commend the Chairman for his speech before 

the NAACP this last week in which he mentioned that we expect 

to deal with the reauthorization of the Voting Rights Act even a 

year early. So it shows we don’t have to wait until the sunset. We 

always have the oversight. 

I was trying to strike a balance here, and also I’m trying to be 

practical. I’m trying to have a provision that will pass and remain 

law when we get to the floor. 

I yield back the balance of my time. 

Mr. WATT. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from North Carolina, 

Mr. Watt. 

Mr. WATT. Thank you, Mr. Chairman. I move to strike the last 

word. 

Chairman SENSENBRENNER. The gentleman’s recognized for 5 

minutes. 

Mr. WATT. I thank the Chairman, and I’m rising in support of 

Mr. Scott’s second degree amendment. But I think it would be remiss of me to do that without applauding first the original amendment by Mr. Lungren. Perhaps the most disturbing thing to me 

about the Chairman’s proposed mark from which we are working 

today was that it had no sunset provisions in it, and one of the 

things that I had said to my constituents after we passed the original PATRIOT Act, was that one of the real important things that 

we were able to insert into that bill was a sunset provisions. And 

161

I reminded them that throughout our history when we have had 

dramatic incidents occur, quite often the legislative body has overreacted or has taken steps that needed to occur for a temporary period of time, but should not be the law henceforth now and forever. 

I would like not to accept the underlying proposition that terrorism will be with us forever, that forever we will have to compromise our basic—some basic rights that I believe the PATRIOT 

Act has compromised. And I honestly think we ought to be reviewing this bill and its provisions on a regular ongoing basis. And I’m 

sure there’s nothing in the fact that there is no sunset that prohibits us from doing that or would be nothing that would prohibit 

us from going back and amending the PATRIOT Act at any point. 

But legislative and political realities and time realities as they are, 

suggest that we simply are not going to do that in the absence of 

a sunset provision. 

If 4 years from now circumstances have changed for the better 

in some respects, I would be tremendously happy. If 4 years from 

now circumstances have changed for the worse, technology may 

have advanced in some ways that would dictate a change in some 

of the provisions of the PATRIOT Act—technology is advancing so 

rapidly that we don’t know what’s on the horizon 4 years from now. 

And the longer we delay forcing ourselves to review any kind of encroachments, impediments, stepping on the toes of the freedoms 

that our country has held so dear over the years, I think the more 

of a disservice we do to our country, and the more we really say 

to the terrorists that we have given in to you by compromising on 

some of the things that our Nation stands for and that our world 

should be aspiring to stand for. 

So I know this is a judgment, this is not a knock on what Mr. 

Lungren has tried to do. I actually applaud what he has done and 

I’m delighted that we are going to have some kind of sunset in 

whatever goes out of this Committee—at least it looks that way at 

this point—but given a choice between a short or a longer one, I 

would certainly favor the shorter sunset. And I yield back the balance of my time. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

The Chair moves to strike the last word and recognizes himself for 

5 minutes. 

I think all of the members and the public know that the sunset 

that is currently contained in the PATRIOT Act was something 

that I insisted upon when the PATRIOT Act was considered immediately after September 11. And I did so because whenever we talk 

about expanding law enforcement powers and potential encroachment upon civil liberties, there is a very subjective line that is 

drawn that nobody will know whether it was done correctly or not 

until there has been some experience under the new law. 

I guess what puzzles me a bit is that the people who are arguing 

for a shorter sunset now were the ones that were arguing for a 

longer sunset 4 years go. 

Be that as it may, we have had almost 4 years of experience 

under the PATRIOT Act. There has been no section of the 16 sections of the PATRIOT Act where law enforcement powers were expanded that has been declared unconstitutional by a Federal court. 

There also have been no lawsuits brought under the Frank amendment that provides a civil remedy with statutory damages for 

162

Americans whose civil rights were violated under the PATRIOT 

Act. And the Justice Department Inspector General has found no 

civil rights violations under the PATRIOT Act, and he was given 

that specific authority to investigate and reach those conclusions as 

a part of those protections that this Committee wrote in the PATRIOT Act in September and October 2001. 

Having said that, let me say that what type of oversight is done 

by any congressional Committee, this one or any of our other Committees, is entirely dependent upon the Committee’s attitude toward oversight and specifically the attitude of the Chairman of the 

Committee and the Chairmen of the Subcommittees toward oversight. I think people who have seen my performance here and prior 

to that in the Science Committee realize that I am an oversight 

hawk, and I have been as much of a hawk against an administration of my own party as Chairman of this Committee as I was over 

NASA during the Clinton administration as Chairman of the 

Science Committee. Oversight was one of the constitutional responsibilities the Founders gave the Congress, and in my opinion we 

should be doing more of it rather than less of it. 

But chairmen come and chairmen go, and I am term limited as 

Chairman, and 2 years from now there will be another person that 

will be sitting in this chair that may have a different view toward 

oversight. 

The oversight that Mr. Conyers and I have done on the PATRIOT Act have been as a result of Mr. Conyers and my insistence 

that the oversight be vigorous and pointed. And we have had differences with the Justice Department and specifically former Attorney General Ashcroft to the point where I had to threaten to subpoena him in order for us to get information that this Committee 

needed to have in the discharge of our oversight responsibilities. I 

can say that in the last couple of years the responses from the Justice Department had been much better, and I comment them for 

that. 

But again, this is my philosophy and that of Mr. Conyers toward 

oversight, and that may change as time goes on. 

I support, reluctantly, the longer sunset provisions, and the reason I do that is because it will force a review. But let me say, I 

don’t think we should have different strokes for different folks, saying that we should have a real short sunset on the PATRIOT Act 

and a real long one on the Voting Rights Act. The principle is the 

same. And I will support and introduce legislation for a very long 

period of extension of the Voting Rights Act because I think that 

the 25 years that was passed in 1982 worked very well. 

Having a sunset as proposed by Mr. Lungren, in my opinion will 

get the debate on the PATRIOT Act out of the political arena, and 

believe me, it is in the political arena now. And having debate on 

the PATRIOT Act being a part of a presidential election campaign 

and then the new Congress immediately afterwards, this debate 

has not been the best in terms of dealing with the actual issues of 

the PATRIOT Act. 

So I would ask the members of this Committee to vote against 

the Scott amendment for the shorter sunset, for the Lungren 

amendment for the longer sunset, and I would urge whomever succeeds me as Chairman of the Committee in January 2007 to be just 

163

as diligent in discharging oversight responsibilities as I believe Mr. 

Conyers and I have been. 

Mr. WATT. Mr. Chairman, could I ask for unanimous consent for 

one additional minute and ask the Chairman to yield for a question? 

Chairman SENSENBRENNER. Without objection, the Chair is given 

an additional minute. I yield to the gentleman from North Carolina. 

Mr. WATT. The Chairman made a statement about somebody, 

some period of time ago when we were doing the original bill, opposing a shorter sunset. I wanted to make sure that we didn’t leave 

the wrong impression here. I don’t have a recollection of that on 

my part. 

Chairman SENSENBRENNER. If I can reclaim——

Mr. WATT. Maybe you were referring to somebody else. 

Chairman SENSENBRENNER. If I can reclaim my time, I can understand why he didn’t have a recollection on that because the final 

sunset provisions were negotiated in the Speaker’s office, and it 

was the then Democratic controlled Senate that wanted a real 

short sunset, and it was Mr. Conyers and I who were present in 

that meeting that wanted a longer one. 

Mr. WATT. A longer one or a shorter one? 

Chairman SENSENBRENNER. That was the difference between 3 

years, 4 years and 5 years. We were for 5, they were for 3, and we 

split the difference. 

Mr. WATT. So it wasn’t as dramatic as we’re talking about here 

today? 

Ms. LOFGREN. Would the Chairman yield? 

Chairman SENSENBRENNER. The Chair will ask unanimous consent for an additional minute and yield to the gentlewoman from 

California. 

Ms. LOFGREN. I will not use an entire minute. I would just like 

to note for the record that during the weekend drafting session on 

the PATRIOT Act I recommended a 2-year statute of limitations, 

and I thank the gentleman for yielding. 

Chairman SENSENBRENNER. Duly noted. 

Mr. DELAHUNT. Mr. Chairman? 

Chairman SENSENBRENNER. My time has expired. 

Mr. DELAHUNT. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Massachusetts, 

Mr. Delahunt. 

Mr. DELAHUNT. I thank the Chairman. I would note that he 

makes the observation that within the provisions of the PATRIOT 

Act there appears to be no abuse that’s been discovered by the Department of Justice. Now, one could opine that the sunset provision 

itself serves in some way as deterrence to abuse because there will 

be inevitably hearings to review the conduct. So I grant you the 

fact that, at least as it relates to the provisions of the PATRIOT 

Act, there does not appear to be any abuse that has been discovered so far. 

At the same time I think we have to recognize that the Inspector 

General of the Department of Justice did find serious problems 

with the detainees being held in New York, but I don’t want to digress. 

164

And I applaud the Chairman for his aggressive oversight. I also 

applaud the gentleman from California. I think this is a step in the 

right direction. I want it as a matter of record, that my own opinion is that 2 years is perfect, and I would go so far as to sunset 

the entire PATRIOT Act, because as the Chairman has indicated, 

Chairmans come, Chairmans go, minorities come, they change, and 

majorities come and change. But there is a natural tension between 

the branches that’s healthy in a democracy. 

And what I found particularly revealing during the course of the 

hearings that were conducted by Mr. Coble with your support, obviously, was that we received a level of cooperation and collaboration 

from the Department of Justice that I have not experienced in my 

previous 9 years of service on this Committee. 

I think as much as it is about the PATRIOT Act, it is also about 

the role of Congress in terms of the relationship with the Executive 

and the Judiciary, and it provides us with leverage to encourage 

cooperation and collaboration, because I know you, myself and 

other members, and not just this particular Committee, have found 

at times it extremely difficult to receive the kind of cooperation 

that ought to be forthcoming from the Executive. 

I’m reminded of serving on the Government Reform Committee 

when there was a inquiry into the conduct of the Federal Bureau 

of Investigation in Boston, and the Republican Chair of that Committee, Dan Burton, as you did, had to threaten the Attorney General of the United States with a contempt citation to secure cooperation. 

So I say to my colleagues on both sides—and by the way, this 

is not a partisan issue, this is historic and is an institutional issue. 

I don’t think we can sunset often enough, and I think if we chart 

a different course in terms of the future, the sunset will serve the 

Congress well despite who the Chairman is. And again, I would 

compliment the Chair on being aggressive in terms of oversight, 

and I would go so far as to say before you move on, I would commend to you consideration of establishing within the Committee an 

additional Subcommittee to deal specifically with the issue of oversight in investigations. 

It’s been done under Chairman Hyde in the International Relations Committee, and I think it’s overdue and it’s needed. 

With that I’ll yield back. 

Mr. SCOTT. Would the gentleman yield? 

Mr. DELAHUNT. I yield to the gentleman from Virginia. 

Mr. SCOTT. Thank you. I thank the gentleman for yielding. 

As the gentleman from Massachusetts is pointing out, whatever 

success there has been with the PATRIOT Act I think is because 

of the sunset, not in spite of the sunset. We’ve had problems with 

the national security letters, reclassification or misclassification of 

some cases of terrorists, racial profiling, as the Chairman has indicated, we’ve had to threaten subpoenas, and clearly there’s been 

more cooperation from the administration in those inquiries involving sections with a sunset than those involving sections without a 

sunset. So I would hope that we would keep a sunset that would 

at least require the next President of the United States to have 

some time during his administration where he’ll have to respond 

to questions. 

Thank you. 

165

Chairman SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Arizona, Mr. Flake. 

Mr. FLAKE. I just want to say in Arizona we love sunsets. I particularly like sunsets of all Government programs, but in this case 

I would thank the gentleman from California for offering this compromise, this 10-year sunset, and I think it’s appropriate and I 

plan to support it. 

With that I yield back. 

Mr. NADLER. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Nadler. 

Mr. NADLER. Thank you, Mr. Chairman. Mr. Chairman, you 

raised the question of comparing the sunset to the sunset of the 

Voting Rights Act. I think there’s a difference and all sunsets are 

not equivalent. This sunset is dealing with very sensitive, as I’ve 

said before, as we’ve all said before, very sensitive powers that 

we’re giving Government that pose potential threats to the liberty 

that we all hold dear. 

Now, it’s easy to say there have been abuses, and maybe there 

haven’t, although there’s still a lot of secrecy, and I wouldn’t agree 

that there have been no abuses. But even if there hadn’t been, 

doesn’t mean there won’t be next year under the next Chairman of 

this Committee, under the next President, under the next Attorney 

General. 

Sunsets in this respect make us keep reviewing it, and that’s 

fine. What is the danger of a sunset, that it makes us do a little 

more work? So what? It keeps it front and center, and this kind 

of thing ought to be kept front and center. The Voting Rights Act 

imposes certain requirements on States to make sure that their 

citizens get the rights they’re entitled to. Should it sunset? Well, 

maybe, because maybe those States now have changed and don’t 

have to have a Federal imposition on them to guarantee those 

rights. But worse comes to worst, so what again? They’re giving the 

rights that ought to be given. 

Here the sunset is to make sure that our citizens have liberty 

and rights, and we ought to have a fairly frequent sunset. I commend the gentleman from California for offering this amendment. 

I wish it were for more than just these two sections, and there will 

be amendments for sunsets for more sections before this markup 

is over, but 10 years is too long. 

Lots of things can happen in 10 years. Why shouldn’t the next 

President have to be concerned about—a 4-year sunset means the 

next President, not this one. Why shouldn’t the next President 

have to be concerned about justifying retention of these police powers? We don’t know how long the war on terror is going to go on, 

we don’t know how it’s going to be waged. We don’t know if abuses 

are going to occur. 

And a 4-year amendment, and if that amendment—and if that 

fails, we’ll offer an amendment for a 6-year sunset—at least keeps 

our feet to the fire. That’s what this is about, keeping our feet to 

the fire to keep our eye on the ball to protect the liberty of American citizens against possible abuses, and it’s nothing to say we’re 

not saying anything by this amendment or by trying to speed up 

this amendment by the 4-year secondary amendment, to say that 

the current Attorney General or the current President or the curVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00169 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1
166

rent Chairman of this Committee, or the current anybody, is doing 

anything right or wrong. It’s simply saying that it’s a useful tool 

to make sure that we focus on it more than once every 10 year, and 

frankly, the liberties of Americans are worth focusing on a lot more 

often than once every 10 years. 

So I support the Scott secondary amendment, and I yield back. 

Chairman SENSENBRENNER. The gentleman from Texas, Mr. 

Smith. 

Mr. SMITH. Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SMITH. Mr. Chairman, I oppose the Scott amendment and I 

expect to also oppose the underlying amendment, and I want to explain why. 

It’s likely on the underlying amendment that I’m going to find 

myself in the good company of many of my colleague on the other 

side of the podium, though not necessarily for the same reason. 

They feel that the 10-year period is too long. I happen to feel that 

we don’t need sunsets at all for the reasons that have already been 

stated by many others. 

The PATRIOT Act has worked well. There have been no abuses. 

And regardless of whether there are sunsets or not, I am sure that 

the oversight will continue, and that can address any possible 

abuses that might come up. 

I’d also like to note, Mr. Chairman, that it seems to me that the 

arguments made against the 3-year sunset could also be made 

against the 10-year sunset. As I say, the PATRIOT Act has been 

working well. 

So I just wanted to state for the record that I am going to oppose 

both the Scott amendment and the underlying amendment as well. 

I’ll yield back. 

Mr. WEINER. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Weiner. 

Mr. WEINER. Thanks, Mr. Chairman. I have yet to really get an 

understanding from the sponsor of the amendment—and frankly, I 

don’t even—from the base amendment, and frankly from you, Mr. 

Chairman, of what’s the harm of going to 2009? I think the Chairman deserves a great deal of credit for (A) inserting the sunset, but 

also generally the way that we’ve taken on issues here. 

I mean essentially what—I think in our Committee under your 

leadership for the first time in a very long time we did a reauthorization of the Justice Department, something that had gone on for 

years without being reauthorized. 

Frankly, what I would say that this is, is essentially a forced reauthorization. I think it has been salutary to have the sunset provisions in because it’s gotten people on both sides of the issue having a discussion about it. It’s forced us to be at this point—I doubt 

very much if there were not sunset provisions in the original we’d 

be having hearings right now. And I think on both sides of the aisle 

concerns have been expressed about how far reaching or whether 

it was not far reaching enough. 

I am puzzled by whether or not making it 2009 in any way weakens our chances on the floor. That’s the only argument I’ve heard 

from the gentleman from California about why 2015 rather than 

167

2009, it strikes a so-called balance. Frankly, the concerns that have 

been raised by opponents would be further assuaged by having a 

shorter sunset, not a longer sunset, that if you believe that you’re 

trying to get votes from people who are like myself, who are kind 

of some parts of the bill we’ve got no problem with, some parts of 

the bill we have serious problems with. There are people on the far 

right and far left who expressed concerns. 

If you truly want to give the tools to the Justice Department for 

additional time, and you don’t want the bill to be defeated all together, a shorter sunset seems to be better way. 

And also from the day-to-day practical prosecution of the law, I 

find it hard to believe that any prosecutor would say or any criminal would say, well, here’s a decision I’m going to make because 

we’ve got a sunset coming up in a few years. I don’t think any terrorist is going to say, all right, I’m going to hold off a little longer 

because we have a sunset coming up in 2009. So I’m in 2007 contemplating a crime, but I’m going to wait because I think it’s going 

to sunset. 

I mean practically speaking, that’s not going to happen, and if 

that makes them push off their plans for terrorism, then we should 

have sunset every year because maybe they’ll just keep putting it 

off and see if we don’t renew it. 

I guess my simple question is—and it hasn’t been answered 

here—is what’s the matter with a shorter sunset? How does it 

harm anyone? Why does the Justice Department mind that much? 

It’s not an indictment of them or it’s not ad argument that they’ve 

done things poorly. What it is, is that the present sunset has been 

a successful fulcrum, (A) to get this back before this Committee; (B) 

to get a full discussion of it before the country. 

You know you say that there haven’t been abuses. We’ve also 

found out in a lot of cases there hasn’t been a great deal of use of 

it. That’s something worth knowing as well that would have not 

come out, would not have had the pressure to come out were it not 

for a shorter sunset. 

And with that, I yield the balance of my time to the gentleman 

from Massachusetts. 

Mr. DELAHUNT. I applaud the gentleman for his, I think, insightful comments. I think we should be thinking about when this legislation comes to the floor because there are concerns there, and only 

has to remember some of the votes that we have witnessed that 

have occurred on the Floor because people have legitimate concerns. 

And I dare say, this sunset, this sunset and the duration of the 

sunset—and it should be expanded in my opinion—is something 

that I think the majority of members of the House will find—will 

welcome. 

Just to support my earlier comments about oversight and the relationship between the branches, someone just passed me a press 

release from Senator Collins and Senator Lieberman dated June 

14, who were speaking about the need for the administration to fulfill its obligations under the National Intelligence Reform and Terrorist Prevention Act of 2004, and I’ll submit this into the record. 

Chairman SENSENBRENNER. Without objection. 

[The press release was not available in time to be included in 

this report.] 

168

Mr. DELAHUNT. They noted a series of reports, strategic plans 

and preliminary actions whose deadlines have come and gone. 

Among them, the National Transportation Strategy, the first step 

towards streamlining the Federal security clearance process, a 

number of port security strategic plans, aviation security staffing 

standards, a baggage screening cost-sharing plan, three reports on 

diplomatic initiatives to root out terrorists. 

I dare say that if we do not have, as Mr. Weiner indicated, the 

leverage, the fulcrum, you know, even if we mandate reports—it 

would be interesting for me if both majority and minority staff 

would review the reports mandated by the PATRIOT Act and other 

antiterrorism statutes to see whether they’ve been filed. 

Chairman SENSENBRENNER. The time of the gentleman from New 

York has expired. The question is——

Mr. SCHIFF. Mr. Chairman? Mr. Chairman, to your left. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Schiff. 

Mr. SCHIFF. I wouldn’t need to make it quick if—well, anyway. 

Thank you, Mr. Chairman. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCHIFF. I want to join in support of the secondary amendment, and the reason I wanted to be recognized on this—I know 

many others have spoken already, but I frankly think this is probably the most important amendment we’re going to have today, and 

indeed I think one of the most important provisions that we in the 

original PATRIOT bill was the sunset provision that the Chairman 

insisted upon. And at the time I strongly supported a 2-year sunset, even a shorter leash. 

My concern with that sunset being 4 years originally was that 

it might take us 4 years before the Committee, as a Committee, 

really did the kind of vigilant oversight that we should do. The PATRIOT bill was basically a bargain. It said we will give law enforcement greater power, and in exchange we will do greater oversight. 

I think many of the powers of the PATRIOT bill needed to be 

conveyed to keep pace with changes in technology and changes in 

the way that terrorists operated. But much as I was concerned, I 

think that with the 4-year sunset the Committee as a Committee 

did not do oversight until 31⁄2 years into the sunset. And I appreciate what the Chairman did with the Ranking Member individually, but the Committee as a Committee, in terms of holding hearings, having witnesses, and giving each of the members a chance 

to participate in the oversight really didn’t happen till 3, 31⁄2 years 

into the life of the PATRIOT bill. 

And I’m afraid that if we extend this by 10 years, it will be 91⁄2

years before we go through this exercise again, and that’s just too 

long. It’s not just a function of the Chairman not being the Chairman. Most of the members of this Committee will no longer be on 

the Committee. Heck, most of the members of this Committee will 

probably no longer be in the Congress who were present when the 

bill passed and are present today. 

To put things in context, my colleague from New York, Mr. 

Weiner, he’ll be finishing his second term as mayor of New York 

when this comes up again. [Laughter.] 

169

My 3-year-old will be a teenager, and I’m not ready for that. 

[Laughter.] 

I’m not ready for either of those things. [Laughter.] 

No, I am ready for Anthony to be mayor. 

We reauthorize departments with great frequency. We reauthorize our transportation bill every 6 years. There’s little risk, unless 

there are great abuses, that if we sunsetted this bill in another 4 

years, that it wouldn’t be re-extended in 4 years. I don’t expect 

there will be abuse of the bill or dramatic abuse of the bill, and 

I would expect that with a 4-year sunset, the worst that will happen is that we’ll be back here in 31⁄2 years, and I would hope sooner, to be looking at some of these provisions again. 

So the downside—I can’t even find the upside—in that it compels 

us as a Committee to do the oversight that we should be doing, I 

think, is substantial. And probably a more realistic sunset date 

would be the single greatest step that could be taken by the majority to outreach to the minority to have a reauthorization that enjoys very broad bipartisan support. 

With that, Mr. Chairman, I yield back. 

Chairman SENSENBRENNER. The question is on the Scott second 

degree amendment to the Lungren amendment. Those in favor will 

say aye? Opposed, no? 

The noes appear to have it. 

Mr. CONYERS. A record vote. 

Chairman SENSENBRENNER. Record vote is requested and will be 

ordered. Those in favor of the Scott amendment to the Lungren 

amendment will, as your names are called, answer aye; those opposed, no. The clerk will call the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

The CLERK. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. Mr. Goodlatte? 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

[No response.] 

The CLERK. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

170

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. Mr. Meehan? 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. Mr. Delahunt? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler? 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

171

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote? The gentleman from South Carolina, Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. 

Chairman SENSENBRENNER. There are no further members who 

wish to cast or change their vote. The clerk will report. 

The CLERK. Mr. Chairman, there are 15 ayes and 21 noes. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. 

The question——

Mr. NADLER. Mr. Chairman? 

Chairman SENSENBRENNER. For what purpose does the gentleman from New York seek recognition? 

Mr. NADLER. Mr. Chairman, I have a secondary amendment at 

the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Mr. Chairman, I have two amendments at the desk. 

Mr. NADLER. The 2011. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Second degree amendment to the Lungren amendment to H.R. 3199, offered by Mr. Nadler. Strike ‘‘2015’’ and insert 

‘‘2011.’’

[The amendment of Mr. Nadler follows:]

Chairman SENSENBRENNER. The chair is prepared to declare the 

Committee in recess until 2 o’clock, at which time, Mr. Nadler will 

be recognized for 5 minutes to explain his amendment. Members 

will please be prompt. 

The Committee is in recess. 

[Whereupon, the Committee was recessed from 12:27 p.m. to 2:07 

p.m.] 

Chairman SENSENBRENNER. A working quorum is present. 

When the Committee recessed for lunch, pending was an amendment offered by the gentleman from California, Mr. Lungren, to 

which a second degree amendment by the gentleman from New 

York, Mr. Nadler, had been offered. We will now resume consideration of the Nadler second degree amendment, and the gentleman 

from New York, Mr. Nadler, is recognized for 5 minutes. 

Mr. NADLER. Thank you. Thank you, Mr. Chairman. 

Mr. Chairman, this amendment, this secondary amendment 

doesn’t need too much discussion. Most of the discussion I think we 


3199I.eps
172

can just read into the record, the discussion on the last secondary 

amendment for the 4-year extension. This simply says instead of a 

10-year extension, as Mr. Lungren would have it—sunset, rather—

it should be a 6-year sunset. 

Before we broke, we had discussion on Mr. Scott’s amendment 

for a 4-year sunset, and the majority thought that that was too 

fast, that 10 years was a better idea. I am compromising at 6 

years. 

Now, one objection—and frankly, again, just to be brief, when 

you are dealing with liberty and with giving Government more 

power, then I think 10 years is just too long. Now, it had been expressed that maybe if a 4-year extension was too short and, among 

other reasons, that would come into effect in 2009, it would put it 

into the next presidential election—well, this would not. This 

would be 2011. It would be the third year of the next presidential 

term. It doesn’t get mixed up in party politics in the 2008 election. 

And again, if we think these things should be sunsetted—and I 

certainly agree they should be—a 6-year sunset is reasonable. Over 

6 years we can see what happens. And to require Congress to look 

at things every 6 years, things that potentially threaten people’s 

liberties, albeit maybe we have to do it because of terrorism, is not 

too often to do. So I think 6 years is a reasonable amount of time, 

and I offer the secondary amendment to what I regard as a good 

amendment by Mr. Lungren. 

I yield back. 

Chairman SENSENBRENNER. The chair recognizes himself for 5 

minutes in opposition to the amendment. 

I rise in opposition to the amendment. The gentleman from New 

York had it half right. He was right when he said that all of the 

arguments that were made in favor of the Scott amendment applied to his amendment. What he omitted is that all of the arguments made against the Scott amendment also apply to this 

amendment. And since the Scott amendment was rejected, I think 

we ought to reject this——

Mr. NADLER. Would the gentleman yield for a second? 

Chairman SENSENBRENNER. Absolutely. 

Mr. NADLER. All the arguments but one, as I pointed out. One 

of the arguments against the Scott amendment was that it would 

put it into the 2008 presidential election because it would sunset 

in 2009. This does not do that. This would sunset in 2011, the third 

year of a presidential term, and that argument——

Chairman SENSENBRENNER. And reclaiming my time——

Mr. NADLER.—is inapplicable. 

Chairman SENSENBRENNER. Reclaiming my time, 2015 is the 

third year of a presidential term, too. And I yield back the balance 

of my time. 

The question is on agreeing to the Nadler second degree amendment to the Lungren amendment. Those in favor will say aye? Opposed, no? 

The noes appear to have it. 

rollcall will be ordered. Those in favor of the Nadler amendment 

to the Lungren amendment will, as your names are called, answer 

aye; those opposed, no. And the clerk will call the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

173

The CLERK. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

[No response.] 

The CLERK. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. Pass. 

The CLERK. Mr. Green, pass. Mr. Keller? 

[No response.] 

The CLERK. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

[No response.] 

The CLERK. Mr. Pence? 

[No response.] 

The CLERK. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

[No response.] 

The CLERK. Mr. Gohmert? 

[No response.] 

The CLERK. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

[No response.] 

The CLERK. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

174

[No response.] 

The CLERK. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

[No response.] 

The CLERK. Mr. Meehan? 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. Mr. Delahunt? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

[No response.] 

The CLERK. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

[No response.] 

The CLERK. Ms. Wasserman Schultz? 

[No response.] 

The CLERK. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their vote? The gentleman from Illinois, Mr. Hyde? 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Goodlatte? 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. 

Chairman SENSENBRENNER. The gentleman from Texas, Mr. 

Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. 

Chairman SENSENBRENNER. The gentleman from Wisconsin, Mr. 

Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. 

Chairman SENSENBRENNER. Further members in the chamber 

who wish—The gentleman from Virginia, Mr. Boucher. 

Mr. BOUCHER. Aye. 

The CLERK. Mr. Boucher, aye. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 9 ayes and 18 noes. 

Chairman SENSENBRENNER. And the second degree amendment 

is not agreed to. 

The question is on——

Mr. SCOTT. Mr. Chairman? 

175

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Scott, for what purpose do you seek recognition? 

Mr. SCOTT. Mr. Chairman, I have a unanimous consent request 

for a Scott-Lungren amendment. 

Chairman SENSENBRENNER. The gentleman will state the request. 

Mr. SCOTT. The amendment reads that the provisions shall cease 

to have effect on December 31, 2005—excuse me, 2015. The amendment would be to insert language ‘‘and after,’’ so it would read, 

‘‘would cease to have effect on and after December 31, 2015.’’

Chairman SENSENBRENNER. Without objection, the modification 

to the amendment is agreed to. Hearing none, so ordered. 

The question now occurs on the Lungren amendment as modified. Those in favor will say aye? Opposed, no? 

The ayes appear to have it. 

Mr. SCHIFF. Mr. Chairman? 

Chairman SENSENBRENNER. Does the gentleman from California 

wish to ask for a rollcall? 

Mr. SCHIFF. No. I just had an amendment at the desk. 

Chairman SENSENBRENNER. The other gentleman from California 

asked for a rollcall. rollcall will be ordered. 

Those in favor of the Lungren amendment as modified will, as 

your names are called, answer aye; those opposed, no. And the 

clerk will call the roll. 

The CLERK. Mr. Hyde? 

Mr. HYDE. Aye. 

The CLERK. Mr. Hyde, aye. Mr. Coble? 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble, aye. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

Mr. GALLEGLY. Aye. 

The CLERK. Mr. Gallegly, aye. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, aye. Mr. Lungren? 

Mr. LUNGREN. Aye. 

The CLERK. Mr. Lungren, aye. Mr. Jenkins? 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins, aye. Mr. Cannon? 

Mr. CANNON. Aye. 

The CLERK. Mr. Cannon, aye. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

Mr. INGLIS. Aye. 

The CLERK. Mr. Inglis, aye. Mr. Hostettler? 

[No response.] 

The CLERK. Mr. Green? 

Mr. GREEN. Aye. 

The CLERK. Mr. Green, aye. Mr. Keller? 

[No response.] 

The CLERK. Mr. Issa? 

Mr. ISSA. Aye. 

The CLERK. Mr. Issa, aye. Mr. Flake? 

176

[No response.] 

The CLERK. Mr. Pence? 

[No response.] 

The CLERK. Mr. Forbes? 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes, aye. Mr. King? 

Mr. KING. Aye. 

The CLERK. Mr. King, aye. Mr. Feeney? 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney, aye. Mr. Franks? 

[No response.] 

The CLERK. Mr. Gohmert? 

Mr. GOHMERT. Aye. 

The CLERK. Mr. Gohmert, aye. Mr. Conyers? 

Mr. CONYERS. No. 

The CLERK. Mr. Conyers, no. Mr. Berman? 

[No response.] 

The CLERK. Mr. Boucher? 

Mr. BOUCHER. Aye. 

The CLERK. Mr. Boucher, aye. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

[No response.] 

The CLERK. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

[No response.] 

The CLERK. Mr. Meehan? 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. Mr. Delahunt? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

[No response.] 

The CLERK. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

[No response.] 

The CLERK. Mr. Chairman? 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman, aye. 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Goodlatte? 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte, aye. 

177

Chairman SENSENBRENNER. Further members in the chamber 

who wish to cast or change—Yes, the gentleman from Arizona, Mr. 

Flake? 

Mr. FLAKE. Aye. 

The CLERK. Mr. Flake, aye. 

Chairman SENSENBRENNER. Further members in the chamber 

who wish to cast or change their votes? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 26 ayes and 2 noes. 

Chairman SENSENBRENNER. And the amendment is agreed to. 

Are there further amendments? 

The gentleman from California, Mr. Schiff. 

Mr. SCHIFF. Mr. Chairman, I know my colleague from New York 

has a burning sunset amendment. I would ask to be recognized 

after one of my colleagues, after Mr. Nadler. 

Chairman SENSENBRENNER. The chair is trying to share the 

wealth, but if this is not the time for the gentleman from California 

to partake of the wealth, for what purpose does the gentleman from 

New York seek recognition? 

Mr. NADLER. Thank you, Mr. Chairman. I appreciate the forbearance of the gentleman from California. 

Mr. Chairman, I do think—I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Mr. Chairman, I have three Mr. Nadler amendments. 

Mr. NADLER. It says ‘‘strike section 3.’’ This is the one by Mr. 

Nadler and Mrs. Lofgren. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Nadler and 

Ms. Lofgren. Strike section 3 and insert the following: Security. 3. 

Sunset. Section 224 of the USA PATRIOT ACT is amended by—(1) 

Inserting ‘‘206’’ in section (a) after ‘‘205,’’; (2) Inserting ‘‘215’’ in section (a) before ‘‘216,’’; and (3) Striking ‘‘2005’’ and inserting ‘‘2015.’’

The amendment of Mr. Nadler follows:]

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3199J.eps
179

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. NADLER. Thank you, Mr. Chairman. 

Mr. Chairman, this amendment, which is short, is not quite selfexplanatory. What it does is extend the 10-year sunset, which we 

have just adopted for two sections, to the other 14 sections that are 

currently sunsetted under the law and that under the bill in chief 

would be permanent. This simply says that all the reasons for the 

sunsets that we just passed for 10 years for the two existing sections, for these two sections, we should do for the other 14 sections 

that do sunset now, and instead of permanentizing them, we 

should sunset them after 10 years. 

So I take from Mr. Lungren the 10 years and we should—all the 

same reasons why the two sections that we just did should be 

sunsetted in 10 years apply to these sections, too. They are extensions of various powers. We are to review them. This includes Section 201, Authority to Intercept Wire or Electronic Communications 

Relating to Terrorism; 202, Wiretaps Relating to Computer Fraud 

and Abuse Offenses; Section 203, Authority to Share Electronic, 

Wire, and Oral Interception Information with Foreign Intelligence 

Operations; Duration of FISA Surveillance of Non-USA Persons; 

Seizure of VoiceMail Messages Pursuant to Warrants; Pen Register 

and Trap and Trace; Interception of Computer Trespass Communications; and so forth. 

All of these are basically new powers granted by the PATRIOT 

Act. All of them were sunsetted now; all of them, I think, should 

be sunsetted in 10 years for the same reasons. 

And I urge the adoption of this amendment, and I yield back. 

Ms. LOFGREN. Would the gentleman yield? 

Mr. NADLER. Oh, yes. I do not yield back, I yield to the 

gentlelady from California. 

Ms. LOFGREN. I will be very quick. As the cosponsor of the 

amendment, I won’t repeat what Mr. Nadler said, but I would 

merely note that some of the provisions that would be covered by 

the amendment really are provisions that relate to technology. And 

it is important both for civil liberties, but also from the technological point of view, that we have a schedule for reviewing those 

issues. Because the technology, I guarantee you, will change, and 

if we don’t have a set time for us to review those changes, we may 

end up with a consequence that we never intended. And I think 

that is an additional reason to support the amendment. 

I thank the gentleman for yielding, and yield back. 

Chairman SENSENBRENNER. Does the gentleman from New York 

yield back? 

Mr. NADLER. Yes, I do. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Issa? 

Mr. ISSA. Thank you, Mr. Chairman. I rise in opposition to the 

amendment. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. ISSA. Mr. Chairman, I know this is well-intentioned, but I 

would like to point out to all of my colleagues that when we did 

this, the PATRIOT Act, initially, one of the reasons for the sunsets 

was this was new. And we wanted the 4 years in which to observe 

180

what happened. We have had not only the 4 years but countless 

hearings. We have looked at this in detail. Mr. Lungren, appropriately, looked and said although there has been no misconduct, 

he would like to, and we have now passed an amendment to hold 

open a little bit longer, or a lot longer period on two provisions. 

But I think that we fail to do our job as a Committee if we simply punt and say, well, we are going to keep it all open. And I 

would suggest that, if we are going to do that, then let us simply 

amend I think it is Section 28, and, you know, we could do everything. We could sunset the entire Homeland Security, for that matter, every 10 years. 

I think there is a point of, if we work together diligently—and 

I promised my office to work together just as I have seen the 

Chairman’s office working—to make sure that we have, if we have 

concerns, we have areas both here and, potentially, on the floor, 

that we reach those amendments on a bipartisan basis so that we 

can make sure that we don’t need to simply leave something unanswered and hope for the best for the next 10 years. 

I would ask my colleagues, at a minimum after this amendment, 

to delay any further amendments on sunsetting in favor of let’s get 

to substantive changes that might be appropriate so that we can 

not have sunsetting, but rather have a law which we are confident 

will last for the entire decades to come. 

Mr. NADLER. Would the gentleman yield? 

Mr. ISSA. I would yield. 

Mr. NADLER. Thank you. Now, this is, as far as I know, the last 

amendment on sunsetting. But I would point out that nothing in 

sunsetting—we don’t hold it open for 10 years. That is not correct. 

The law is the law. This makes us come back and review it in 10 

years. And certainly nothing that says review it in 10 years precludes our reviewing it in 10 minutes or 10 months or next year, 

as we ought to on a continuing basis. 

But at the minimum, since these are police powers that have to 

balance carefully, we ought to at least make sure that our successors—or us, if we are still here——

Mr. ISSA. I appreciate the gentleman from New York. And I 

would reclaim and yield the balance of my time to the gentleman 

from Texas. 

Mr. SMITH. I thank the gentleman from California for yielding. 

Mr. Chairman, I, too, oppose this amendment, which applies to 

all 16 of the sunsetted provisions of the PATRIOT Act. The PATRIOT Act was a long overdue measure aimed at first closing gaping holes in the Government’s ability to collect vital intelligence information on the global terrorist network, and second, protecting 

Americans from another attack. It was supported overwhelmingly 

by the American people and passed by a margin of 98-1 in the Senate and 347-66 in the House. 

Even the ACLU said, in a recent press release, that ‘‘most of the 

voluminous PATRIOT Act is actually unobjectionable from a civil 

liberties point of view’’ and that ‘‘the law makes important changes 

that give law enforcement agents the tools they need to protect 

against terrorist attacks.’’

In order to make sure that we did not overreact to the September 

11 murder of over 3,000 innocent Americans by enacting legislation 

that went too far, we placed sunsets on some PATRIOT Act proviVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00184 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1
181

sions. Nearly 4 years later, successes in terrorist investigations 

show not only that the PATRIOT Act was the right way to go, but 

also that the sunsets were not necessary. There has not been even 

one substantiated abuse of power under the PATRIOT Act, but 

there have been terrorist prosecutions. The sunsets should not be 

reinstated across the board. 

The information sharing powers created by Section 218, for example, which would be sunsetted again by this amendment, were 

instrumental in disrupting terrorist cells in New York, Oregon, 

Florida, and Virginia, and in prosecuting a number of individuals 

tied to terrorist organizations. 

The Section 212 power to authorize electronic communications 

service providers to disclose records to the Government if there is 

the threat of death or serious injury, which would be sunsetted 

again under this amendment, allowed investigators to prevent the 

bombing of a high school and allowed investigators in Texas to apprehend an individual who threatened to attack a mosque. 

This amendment would have a chilling effect on current and future investigations because of the uncertainty a sunset places on 

the direction of an investigation. If investigators believe that they 

may no longer have the ability to share information, obtain roving 

wiretaps, or obtain certain business records, they may hesitate to 

pursue the investigation. 

Mr. Chairman, sunsets may have had a proper place when they 

were enacted at the beginning of this landmark legislation in the 

aftermath of September 11th, but since then the effectiveness of 

the PATRIOT Act has been proved many times over. There should 

be no sunsetting of all these provisions or any sunsetting of our 

willingness or ability to keep America safe. 

I yield back the balance of my time. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

The question is on——

Mr. SCOTT. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Scott. 

Mr. SCOTT. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCOTT. Mr. Chairman, I agree that most of the, or at least 

a lot of the PATRIOT Act is in fact good law. In fact, this Committee reported a version of the PATRIOT Act unanimously. And 

so we felt that a lot of it could have been passed without a lot of 

controversy. People have said that it has worked okay. There have 

been misclassifications of terrorism cases and there have been 

problems, so when the suggestion is made that there are no problems, I don’t want that comment to go without controversy. We 

have seen, because we have had the sunsets, we have had much 

better cooperation from the administration because of the sunsets. 

The Chairman has indicated that we had to threaten a subpoena 

to get the cooperation, at least on some issues, from the Attorney 

General. 

And I would hope that we would adopt this. I think 10 years is 

too long, but we have already had that debate. So long as we find 

on reauthorization, when it comes up for reauthorization, that it is 

worked, there won’t be any problem reauthorizing it. It just enVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00185 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1
182

sures it will have oversight. So I would hope that we would adopt 

the amendment, and I yield——

Mr. CONYERS. Would the gentleman from Virginia yield? 

Mr. SCOTT. I will yield. 

Mr. CONYERS. Well, I want to agree with you, because the original PATRIOT Act that was unanimously voted out had 2-year sunset provisions. Two years, not four, and certainly not 10. And so I 

would like to remind the Committee that our collective work product was far more carefully tailored than now. 

And I couldn’t agree with you more. You know, a member making a statement that there are no PATRIOT Act violations does 

not, unfortunately, turn it into gospel. That is just one person’s 

view. We are putting together a paper here that shows that there 

were dozens and dozens of violations that have come to our attention, and probably others that we haven’t found out about yet. 

Mr. SCOTT. Thank you very much. And reclaiming my time, I 

yield to the gentleman from New York. 

Mr. NADLER. Thank you. I thank the gentleman for yielding. 

I just want to add that, you know, as was said a moment ago, 

much of the Patriot—and the ACLU said much of the PATRIOT 

Act is unobjectionable and is fine and uncontroversial and no one 

objects to it. But parts of the PATRIOT Act, especially the parts 

that were sunsetted, get very expanded and perhaps, in some 

hands and in some times and in some places, dangerous powers to 

police authorities. They may not have been misused; they may have 

been misused. Who knows in the future? They may be very necessary in the war on terrorism for now, maybe for the future. But 

the one thing that sunsetting says is that we should not get too 

comfortable with expanded police powers in this country. We 

should be nervous about expanded police powers in this country, 

because they threaten liberty. They may be necessary in an age of 

terrorism, but we should be nervous about them, we should be 

grudging about them, and we should review them. And all the sunset provision says is review those expanded police powers in 10 

years. It is worth the extra time for this Committee to protect liberty. 

Thank you. I yield back. 

Chairman SENSENBRENNER. The question is on the amendment 

offered by the gentleman from New York, Mr. Nadler, and the gentlewoman from California, Ms. Lofgren. 

Those in favor will say aye? Opposed, no? 

The noes appear to have it. The noes have it, and the amendment is not agreed to. 

Are there further amendments? 

Mr. NADLER. rollcall. 

Chairman SENSENBRENNER. The gentleman from New York asks 

for a rollcall. Those in favor of the Nadler-Lofgren amendment will, 

as your names are called, answer aye; those opposed, no. And the 

clerk will call the roll. 

The CLERK. Mr. Hyde? 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. Mr. Smith? 

Mr. SMITH. No. 

183

The CLERK. Mr. Smith, no. Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

[No response.] 

The CLERK. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

[No response.] 

The CLERK. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

184

[No response.] 

The CLERK. Mr. Meehan? 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. Mr. Delahunt? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

[No response.] 

The CLERK. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote? The gentleman from Ohio, Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Boucher? 

Mr. BOUCHER. Aye. 

The CLERK. Mr. Boucher, aye. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their votes? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 12 ayes and 21 noes. 

Chairman SENSENBRENNER. The amendment is not agreed to. 

Are there further amendments? The gentleman from Maryland, 

Mr. Van Hollen. 

Mr. VAN HOLLEN. Thank you, Mr. Chairman. I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Van Hollen 

and Mr. Conyers. At the end of the bill, add the following: Section 

lll. Knowing transfer of firearm to individual named in the Violent Gang and Terrorist Organization File treated as providing material support to terrorists. 

Mr. VAN HOLLEN. Mr. Chairman, I ask unanimous consent that 

further reading of the amendment be dispensed with. 

Chairman SENSENBRENNER. Without objection, so ordered. 

[The amendment of Mr. Van Hollen and Mr. Conyers follows:]

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3199K.eps
186

Chairman SENSENBRENNER. The gentleman from Maryland is 

recognized for 5 minutes. 

Mr. VAN HOLLEN. Thank you, Mr. Chairman. I am pleased to 

offer this amendment together with Mr. Conyers. 

There is an existing provision in the PATRIOT Act entitled ‘‘Providing Material Support to Terrorists,’’ which does something I 

think we all agree needs to be done, which says simply that if you 

are somebody who is providing aid and comfort and providing material support to somebody conducting a terrorist act, then you, too, 

should be held accountable. 

What this amendment does, very simply, it says that if you 

knowingly—and I want to stress this is not if you have reason to 

know, this is not if you speculate, that you might know—this is if 

you know that somebody is on the terrorist watch list and you provide that individual with firearms, like a semiautomatic weapon or 

other controlled weapons, that you can be held responsible for that 

action. And it seems to me that if we want to address the roots of 

the problem as we have in the existing bill, where we say that 

someone who provides material support to a terrorist will also be 

held accountable and responsible, it makes sense that if we know 

that somebody is on the terrorist watch list and you go out and sell 

them, you know, 12 AK47s, that you also should be held responsible under this provision providing material support to terrorists. 

So I urge my colleagues on both sides of the aisle to adopt this 

amendment, and I yield to Mr. Conyers. 

Mr. CONYERS. I thank my colleague for joining with me, and me 

joining with him, in this amendment. Terrorists’ access to guns. 

What could be more relevant in a PATRIOT Act reauthorization? 

We are not talking about weapons of mass destruction, we are talking about guns, period, in the hands of any terrorist is a danger 

to Americans, particularly inside the United States. 

And so what we are trying to do with Van Hollen-Conyers is to 

close an alarming loophole that allows suspected and actual members of terrorist organizations to legally purchase guns. I will not 

repeat that sentence because it speaks for itself. 

A GAO report: 56 firearm purchase attempts were made by individuals designated as known or suspected terrorists by the Federal 

Government. Forty-seven of these cases, transactions of sale were 

permitted to proceed because officials couldn’t find any disqualifying information such as a felony conviction or court-determined 

mental defectiveness in the individual applicant’s background. 

So under the law as it stands without this amendment, even in 

the PATRIOT Act neither suspected or actual membership in a terrorist organization is a sufficient ground in and of itself to prevent 

such a purchase from taking place. I think this Committee is not 

about to let a PATRIOT Act reauthorization come out knowing that 

this is the case and that we must act. 

I deliberately did not mention assault weapons because they are 

going to come up in a special amendment. So, my colleagues, please 

join us so that we can really wage the best war that we can against 

terrorists in the United States by keeping domestic guns out of 

their hands for those who know who they are selling them to. 

Again, as the gentleman from Maryland indicated, this turns on 

knowledge and intent, and I think that it is the least that we can 

do on a bill such as this. 

187

I return the time back to my colleague, if he chooses to use it. 

Mr. VAN HOLLEN. Well, I thank my colleague. I think the point 

has been made here. And I do want to stress that this is where you 

are knowingly transferring, where an individual knowingly transfers firearms to somebody who is on the terrorist watch list. It 

seems to fit very well into the provision that already exists with 

respect to providing material support to terrorists. And I urge my 

colleagues to adopt the amendment. 

Mr. KING. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Iowa, Mr. King. 

Mr. KING. Mr. Chairman, I wish to be recognized to speak in opposition. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. KING. Thank you, Mr. Chairman. And although I agree with 

the sentiment in this amendment, and all of us want to take all 

weapons out of the hands of terrorists, I would seek to answer the 

question that was asked by the Ranking Member from Michigan, 

Mr. Conyers, although it may have been rhetorical, what could be 

more relevant than taking guns out of the hands of terrorists; I 

would submit taking bombs out of the hands of terrorists would be 

more relevant, given the circumstances that we have seen in the 

history of terrorism. 

But it is not my particular concern. I would like to find a way, 

too, that we could verify that the terrorists are on the watch list 

for a reason. But in fact, we can’t know if they are on the list or 

not because it is a classified list. And so I understand the amendment says ‘‘knowingly’’ the name appears on the file. I don’t know 

how an individual that might be providing that gun would know 

that they were on the list, since it is classified. 

And then the second point is that there is a list, though, and that 

list is the list of those who are disabled of their firearms rights. 

And it is a list that has been determined to be consistent with the 

Second Amendment of our Constitution. And those conditions are, 

people who have been adjudicated in one form or another for having a legitimate reason to have their Second Amendment gun 

rights denied, these would be people who have committed a felony, 

people who are a fugitive from justice, addicted to a controlled substance, or adjudicated mentally defective or an illegal alien, or dishonorably discharged from the military, or having renounced their 

U.S. citizenship or be subject to a restraining order, or being convicted of a crime of domestic violence. We make sure that when 

people are denied their constitutional rights to keep and own firearms that they have a process by which they go on the list where 

they are denied, they have an opportunity to appeal that, an opportunity for their case to be heard. And in this case, not only do they 

not have an opportunity to be on the terrorist watch list, they may 

not know that they are on the watch list. And if they might hear 

a rumor that they are, for example, be denied boarding an airplane, 

which has happened to some of our colleagues, then they only suspect that they are on; it might confirm they are on, but they may 

not know why. 

So I think that even though the intent of this amendment is a 

good one, to take the weapons out of the hands of terrorists, it 

reaches beyond a point where we have constitutionally ever 

188

reached before with regard to their restraint on access to guns 

under the Second Amendment. So the language and the intent is 

good, but the effect on our Second Amendment of the Constitution, 

I believe, is——

Mr. CONYERS. Would the gentleman from Iowa yield to me briefly? 

Mr. KING. I would be happy to, Mr. Conyers. 

Mr. CONYERS. Thank you very much. 

What I have heard you say is that terrorists have a constitutional right to weapons, a protected constitutional right——

Mr. KING. Reclaiming my time. 

Mr. CONYERS. Right? 

Mr. KING. Of course not. And in fact these people are not adjudicated as terrorists. You said yourself that they were known or 

suspected to be on the terrorist watch list, those 56 people that applied. I don’t think that you stated before this Committee that they 

were all on the terrorist watch list, because that would have been 

at least acknowledging an understanding of what was on the classified list itself. 

So I would conclude by urging a No vote and I would yield back 

my time. 

Mr. VAN HOLLEN. Would the gentleman yield on that point? 

Mr. KING. I have yielded back. 

Chairman SENSENBRENNER. The gentlewoman from California, 

Ms. Waters. 

Ms. WATERS. Thank you very much. 

Mr. Chairman and members, this amendment appears to be the 

most reasonable, well thought-out amendment going directly to the 

heart of protecting us from terrorists or people who would do us 

harm. And yet, I am absolutely amazed that the gentleman on the 

opposite side of the aisle who just spoke is concerned about protecting the rights of suspected terrorists. 

It seems to me we have sat here and we have listened to some 

of the same voices talk about how we can obtain private medical 

records, how we could place people under investigation without judicial review, how we can have access to e-mails, and surveillance 

of all kinds, invading the rights of folks who you don’t even have 

to show probable cause. And here we have an objection to trying 

to keep guns out of the hands of suspected terrorists. 

I don’t understand it. It doesn’t make good sense to me. And for 

those who would paint themselves as being concerned about how 

we secure this country, how we secure the homeland, how we really 

deal with this problem of terrorism, given that there is some information that would lead a reasonable person to believe that this 

person could be a terrorist, and you don’t want to keep firearms out 

of their hands, I don’t understand it. And we certainly must have 

a recorded vote on this. And I yield——

Mr. CONYERS. Would the gentlelady yield? 

Ms. WATERS. I yield to the gentleman from New York. 

Mr. WEINER. Thank you. What I found interesting in the opposition from one of the members on the other side is that the objective 

was right and the language was right, but there was some concern 

about his interpretation of, perhaps, that this would be problematic 

to the Second Amendment. 

189

I just want to reiterate that the Van Hollen-Conyers amendment 

says that the person would only be in trouble under this section if 

they knowingly sold to someone who appeared on the list. So it is 

not as if he gets to guess or they have to do intelligence. They just 

have to know. I mean, if the intent was fine of the bill, well, that 

is at least a step in the right direction. If the language was acknowledged to being right, then the only problem is that the reading of it must be faulty. 

Mr. KING. Would the gentleman yield? 

Ms. WEINER. I don’t control the time, but I certainly hope that 

the gentlelady will because I am dying to know what is it that you 

think is not good about it if you like the intent and the language? 

And I will yield back. 

Ms. WATERS. I yield to the gentleman from Michigan. 

Mr. KING. I thank the gentle——

Mr. CONYERS. I just want to——

Chairman SENSENBRENNER. She didn’t yield to you. 

Mr. CONYERS. I just want to point out what is left for us to do 

in this bill reauthorizing a PATRIOT Act and allowing people to 

knowingly sell to terrorists or suspected terrorists. Then that 

makes everything else we do secondary. We just opened the barn 

door. I can’t figure out why we should stay around here for another 

day or so and mull over dozens of other very worthwhile amendments when we have already agreed that the constitutional rights 

of terrorists are protected by the Second Amendment to the Constitution—a proposition I have never heard in all of my years on 

the Judiciary Committee. 

Ms. WATERS. Reclaiming my time, I am going to yield because I 

am so anxious to get to the vote on this. I think it is very important that we have a recorded vote. I yield back the balance of my 

time. 

Mr. LUNGREN. Mr. Chairman? 

Chairman SENSENBRENNER. The question——

Mr. LUNGREN. Mr. Chairman? Over here. 

Chairman SENSENBRENNER. The gentleman from California did 

not hear the gentlewoman from California’s request to go to a vote 

quickly? 

Mr. LUNGREN. Yes, I did, but there are some remarks on the 

record that I——

Chairman SENSENBRENNER. Well, then, the gentleman is recognized for 5 minutes. 

Mr. LUNGREN. Strike the last word in opposition to the amendment. 

I mean, we know this is serious business. When I was attorney 

general, I set up a violence suppression unit that did nothing but 

go and take guns off the street from those who were convicted felons, those who were violent offenders. We took literally thousands 

off the street. We put people away for long periods of time. We had 

to deal with the gang issue. And one of the constitutional issues 

that comes up with lists of gangs is who has access to those lists, 

because on your gang list you often have people who are affiliated 

with gangs but don’t have a criminal history. You can’t mix them 

into criminal history records precisely because they are different 

categories. Some law enforcement have access to them, others do 

not. 

190

It is my understanding—and someone can correct if I am 

wrong—it is my understanding that the Violent Gang and Terrorist 

Organization File maintained by the Attorney General is classified. 

Now, if that is the case, what we are doing here is trying to fool 

people with an amendment that seems to do something. If it is a 

classified list, how can anybody who doesn’t have a classified clearance be able to see it? 

And so what we are talking about here is a feel-good amendment 

that doesn’t go to the question of dealing with terrorists or gang 

members. And I know it makes people feel good to talk about some 

sort of list that answers the questions, but having gone through 

this in one of my past lives and knowing that you have different 

categories of information on different lists, access to which is granted to only certain people under certain standards——

Ms. WATERS. Would the gentleman yield? 

Mr. LUNGREN. Yes, I would be happy to yield. 

Ms. WATERS. Two questions I see. First, I don’t believe it is classified. But if we assume that it is, the amendment itself would 

apply only if the individual knew that the person was on that list. 

So——

Mr. LUNGREN. And there be no reason of knowing unless they 

had a classified——

Ms. WATERS. That is not true. If they knew, if they knew and 

sold it anyhow, that is the only time this would apply. So the gentleman’s objection, even though I don’t think it is classified, would 

not actually cause a problem. 

And I thank the gentleman for yielding. 

Mr. LUNGREN. Well, the other thing is, if this list is what I think 

it is, at certain moments in time you have people who are not 

members of a terrorist group or members of a gang, but have been 

put on there because of a suspicion that they may be. And that is 

one of the reasons that you don’t allow access to some of these lists. 

I am just talking about from the standpoint of lists I know with 

respect to gang——

Mr. WEINER. Would the gentleman yield on that point? 

Mr. LUNGREN. You have to be very careful about designating people as gang individuals and putting that out somewhere. And there 

have been carefully drawn limitations on who gets access to it and 

who doesn’t. 

Mr. WEINER. Would the gentleman yield? 

Mr. LUNGREN. I mean, this is an interesting discussion, but——

Mr. WEINER. Would the gentleman yield on that point? 

Mr. LUNGREN. Yes, sure. 

Mr. WEINER. I am just curious. If the United States Government 

and the agencies in charge of making sure that people who are terrorists don’t get onto planes, don’t get access to secure places, if a 

person is on that list, isn’t that—and someone knows they are on 

that list and sells them a weapon anyway, isn’t that kind of a kind 

of precaution we might want to maybe possibly have? What is the 

harm? What is the harm that you see in saying that if someone 

knowing knows they are on that list, a list, by the way, that we 

rely upon for much tougher sanctions than this bill, what is the 

harm of saying if someone knowingly sells to someone——

Mr. LUNGREN. Well, I will take back my time, because what we 

are doing here is silly. Because you know the people don’t have 

191

that information. This is the reason why we decide that we don’t 

give airlines the list. We give them—they are allowed to make queries into the list to find out if people are there. They don’t know 

why people are on or not on. It is one of the reasons we try and 

make a delineation between law enforcement people who have had 

an opportunity to be cleared to know this information, and others. 

So if you want to, you know, vote for the bill, or vote——

Ms. WATERS. Will the gentleman yield? 

Mr. LUNGREN.—means something, you can. But the fact of the 

matter is it means absolutely nothing. 

Ms. WATERS. What if Karl Rove leaked the information? 

Mr. KING. Will the gentleman yield? 

Mr. LUNGREN. I will yield whatever time I have. 

Mr. KING. I thank the gentleman from California. And I would 

point out there is a distinction here, and that is the list that I read, 

the nine classifications of those who have been disabled of their 

constitutional rights, all the people who have been adjudicated, the 

list we are talking about in this amendment, though well-intentioned, is a list that includes those people who are under suspicion, 

not those who are adjudicated. And that is a real violation of the 

same kind of things that you are trying to avoid in many of your 

other amendments. 

And I would yield back. Thank you. 

Mr. WATT. Mr. Chairman? 

Chairman SENSENBRENNER. For what purpose does the gentleman from North Carolina, Mr. Watt, seek recognition? 

Mr. WATT. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. WATT. Mr. Chairman, I had to step out and I walked back 

in to what appears to me to be a surreal discussion. I want to address one aspect of it. I mean, I thought that one of the real problems we had with the PATRIOT Act across the board was the extent to which it treads on constitutional rights. And Mr. King’s argument about the Second Amendment is the one that I just 

couldn’t quite come to grips with. He seemed to be suggesting that 

he couldn’t support this amendment because it would tread on the 

Second Amendment to the Constitution of the United States. 

I did want to remind him of the provisions in the Sixth Amendment to the Constitution of the United States, which provides that 

accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district in which the crime shall have 

been committed, which district shall have been previously 

ascertained by law; and be informed of the nature and cause of the 

accusation, to be confronted with the witnesses against him, to 

have compulsory process for obtaining witnesses in his favor, and 

to have the assistance of counsel for his defense. 

If the marginal—even if you assume that the Second Amendment 

says what you believe that it says, I can’t imagine that you think 

that what we have done is more an impediment on the Second 

Amendment than it is on this amendment. I mean, we have people 

locked up, no charges brought against them, no right to counsel, 

no—I mean, you know. So I thought we all had accepted that there 

was going to be some infringement. That is why we had such a 

long debate about the sunset provisions, because, you know, at 

192

least you could go back and review the extent to which this is happening and get us back at some point to a balance that protects our 

constitutional rights. But you can’t with integrity argue that you 

can protect only the Second Amendment, unless you are going to 

argue just as vigorously and vehemently that you are going to protect the other constitutional protections here. 

So, I mean, I—now, I don’t have any problem with you standing 

up for the Second Amendment. I mean, you know, I just want you 

to make it a little bit broader than the Second Amendment. 

Mr. SCHIFF. Will the gentleman yield? 

Mr. WATT. There is a whole bunch of provisions in the Constitution that we are treading and shredding—hopefully, temporarily. I 

just wanted to point that out. I will yield to the gentleman from 

California. 

Mr. SCHIFF. I thank the gentleman for yielding. I just wanted to 

make a quick related point, and that is that a lot of the provisions 

of the Patriot bill that we are discussing today involve the Fourth 

Amendment right to be free from unreasonable searches and seizures. And in all the cases that we are talking about, about surveillance under FISA or other provisions, we are talking about people 

who are suspects. None of these people are adjudicated felons. We 

are all talking about suspects, and in some cases, with standards 

less than probable cause. 

Now, here, yes, we are talking about people who are suspects, although I guess you could have people who are convicted also that 

are part of the Violent Gang and Terrorist Organization File. But 

yes, we are talking about suspects and their rights under the 

Fourth Amendment and suspects and their rights under the Second 

Amendment. And I find it, you know, very incongruous that we are 

saying that the Fourth Amendment rights we are willing to——

Mr. WATT. Fudge. 

Mr. SCHIFF. Well, I wouldn’t use the word ‘‘fudge,’’ but, you 

know, we are willing to push the envelope on the Fourth Amendment vis-a-vis these suspect, but when it comes to the sacrosanct 

Second Amendment, and we are talking about knowingly giving a 

firearm to somebody who is a potential terrorist, that that is okay 

because they are only potentially terrorists. But we can surveill potential terrorists; we just can’t take their gun away. 

That seems to me an extraordinary result, that we can go up on 

a wiretap of a potential terrorist, but we can’t stop someone from 

knowingly giving guns to a potential terrorist. And I don’t know 

why the Fourth Amendment, apart from reasons that are unspoken 

here in Committee but plain to everyone in this Committee, I don’t 

know why the Second Amendment is getting so much more vigilant 

protection here than the Fourth or, as my colleague mentions, the 

Sixth. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

The question is on the Van Hollen amendment. Those in favor 

will say aye? Opposed, no? 

The noes appear to have it. 

Mr. CONYERS. Record vote, sir. 

Chairman SENSENBRENNER. A record vote will be ordered. Those 

in favor of the Van Hollen amendment will, as your names are 

called, answer aye; those opposed, no. And the clerk will call the 

role. 

193

The CLERK. Mr. Hyde? 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

[No response.] 

The CLERK. Mr. Goodlatte? 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

[No response.] 

The CLERK. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

194

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. Mr. Meehan? 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. Mr. Delahunt? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler? 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote? The gentleman from California, Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Boucher? 

Mr. BOUCHER. No. 

The CLERK. Mr. Boucher, no. 

Chairman SENSENBRENNER. If there are no further members who 

wish to cast or change their vote, the clerk will report. 

The CLERK. Mr. Chairman, there are 15 ayes and 22 noes. 

Chairman SENSENBRENNER. The amendment is not agreed to. 

Are there further amendments? The gentleman from California, 

Mr. Berman. 

Mr. BERMAN. Mr. Chairman, I have an amendment at the desk, 

Berman and Delahunt, on data mining report. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Berman 

and Mr. Delahunt. At the appropriate place in the bill, insert the 

following: Section lll. Data mining report. (a) Definitions. In 

this section——

[The amendment of Mr. Berman and Mr. Delahunt follows:] 

195

1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MR. BERMAN AND MR. DELAHUNT

At the appropriate place in the bill, insert the following:

1 SEC. lll. DATA-MINING REPORT.

2 (a) DEFINITIONS.—In this section:

3 (1) DATA-MINING.—The term ‘‘data-mining’’

4 means a query or search or other analysis of 1 or

5 more electronic databases, where—

6 (A) at least 1 of the databases was ob7 tained from or remains under the control of a

8 non-Federal entity, or the information was ac9 quired initially by another department or agen10 cy of the Federal Government for purposes

11 other than intelligence or law enforcement;

12 (B) the search does not use a specific indi13 vidual’s personal identifiers to acquire informa14 tion concerning that individual; and

15 (C) a department or agency of the Federal

16 Government is conducting the query or search

17 or other analysis to find a pattern indicating

18 terrorist or other criminal activity.


3199L.AAB
196

2

H.L.C.

1 (2) DATABASE.—The term ‘‘database’’ does not

2 include telephone directories, information publicly

3 available via the Internet or available by any other

4 means to any member of the public without payment

5 of a fee, or databases of judicial and administrative

6 opinions.

7 (b) REPORTS ON DATA-MINING ACTIVITIES.—

8 (1) REQUIREMENT FOR REPORT.—The head of

9 each department or agency of the Federal Govern10 ment that is engaged in any activity to use or de11 velop data-mining technology shall each submit a

12 public report to Congress on all such activities of the

13 department or agency under the jurisdiction of that

14 official.

15 (2) CONTENT OF REPORT.—A report submitted

16 under paragraph (1) shall include, for each activity

17 to use or develop data-mining technology that is re18 quired to be covered by the report, the following in19 formation:

20 (A) A thorough description of the data21 mining technology and the data that will be

22 used.

23 (B) A thorough discussion of the plans for

24 the use of such technology and the target dates


3199L.AAC
197

3

H.L.C.

1 for the deployment of the data-mining tech2 nology.

3 (C) An assessment of the likely efficacy of

4 the data-mining technology in providing accu5 rate and valuable information consistent with

6 the stated plans for the use of the technology.

7 (D) An assessment of the likely impact of

8 the implementation of the data-mining tech9 nology on privacy and civil liberties.

10 (E) A list and analysis of the laws and

11 regulations that govern the information to be

12 collected, reviewed, gathered, and analyzed with

13 the data-mining technology and a description of

14 any modifications of such laws that will be re15 quired to use the information in the manner

16 proposed under such program.

17 (F) A thorough discussion of the policies,

18 procedures, and guidelines that are to be devel19 oped and applied in the use of such technology

20 for data-mining in order to—

21 (i) protect the privacy and due process

22 rights of individuals; and

23 (ii) ensure that only accurate informa24 tion is collected and used.


3199L.AAD
198

4

H.L.C.

1 (G) A thorough discussion of the proce2 dures allowing individuals whose personal infor3 mation will be used in the data-mining tech4 nology to be informed of the use of their per5 sonal information and what procedures are in

6 place to allow for individuals to opt out of the

7 technology. If no such procedures are in place,

8 a thorough explanation as to why not.

9 (H) Any necessary classified information in

10 an annex that shall be available to the Com11 mittee on Governmental Affairs, the Committee

12 on the Judiciary, and the Committee on Appro13 priations of the Senate and the Committee on

14 Homeland Security, the Committee on the Judi15 ciary, and the Committee on Appropriations of

16 the House of Representatives.

17 (3) TIME FOR REPORT.—Each report required

18 under paragraph (1) shall be—

19 (A) submitted not later than 90 days after

20 the date of enactment of this Act; and

21 (B) updated once a year and include any

22 new data-mining technologies.


3199L.AAE
199

Mr. BERMAN. Mr. Chairman, I ask unanimous consent the 

amendment be considered as read. 

Chairman SENSENBRENNER. The gentleman from Texas reserves 

a point of order. Without objection, the amendment is considered 

as read. Subject to the reservation, the gentleman from California 

is recognized for 5 minutes. 

Mr. BERMAN. Thank you very much, Mr. Chairman. 

This amendment that Mr. Delahunt and I are offering would require the departments and agencies of the Federal Government to 

report to Congress on the development and implementation of data 

mining technologies. 

When Mr. Delahunt offered this amendment on behalf of both of 

us during the intelligence reform markup of this Committee, it was 

accepted by a voice vote. The General Accounting Office issued a 

report in May 2004 that identified almost 200 data mining projects 

throughout the Federal Government that were either operational or 

in the planning stages. Many of them make use of personally identifiable data obtained by private sector databases. 

Two concerns lead us to this amendment. The first is that Americans rightly have privacy concerns about these data mining technologies, particularly when we hear that there are 200 of them in 

the works. When the Total Information Awareness Program came 

to light, there was tremendous public concern about the extent of 

the project. 

Congress ought to know about these programs not just as they 

are being put into place, but as they are being developed, so that 

we can ensure that privacy concerns are taken into account. 

The second reason for the amendment is that the budget for the 

Total Information Awareness Program in the Defense budget alone 

in 2004 was $169 million. The Defense appropriations bill cut all 

of that funding. These technologies are not free. They are expensive 

to develop and run. When Congress is unaware of their development and steps in only at the implementation to cut funding, taxpayer dollars are wasted. 

Law enforcement must have the necessary means to protect our 

safety, but the use of data mining technologies should not be allowed to put Americans’ privacy at risk. By implementing a reporting requirement, we can ensure that Congress knows in advance of 

implementation and is able to respond appropriately. 

I know that there is a question about the germaneness of this 

amendment, and I know that when it was adopted last time, there 

were problems in sequential referrals because we seek to get reports on data mining in a number of different agencies, not just 

agencies that the Judiciary Committee has oversight on. At the appropriate time——

Chairman SENSENBRENNER. Will the gentleman yield? 

Mr. BERMAN. I would be happy to yield. 

Chairman SENSENBRENNER. The gentleman from California and 

other members of the Committee know that the chair has been 

very concerned about data mining in an unchecked and 

unreportable manner by agencies of the Executive Department. 

Now, when the original PATRIOT Act was first considered, the 

final version of the PATRIOT Act did have provisions checking 

data mining activity by the Justice Department. 

200

I believe that the concern of the gentleman from California is a 

very well-founded one. And while I don’t think that the amendment 

he is offering is germane under the rules of the House, I do think 

that he is talking about a legitimate subject that should be legislated on sometime further on in the legislative process, either in 

this bill or in subsequent legislation. And I will give my commitment to the gentleman from California to work with him on this 

subject, because I believe that he has spotted something that does 

need to be addressed. 

Mr. BERMAN. Thank you very much. Reclaiming my time, I 

thank the Chairman very much both for his comments and for his 

commitment. And before I withdraw the amendment, I would like 

to yield to my cosponsor, Mr. Delahunt. 

Mr. DELAHUNT. I won’t take any time. I just appreciate the offer 

by the chair. I think this is an issue, however, that has really 

raised concerns on a broad swath among the American people in 

terms of privacy interests and something that really compels us to 

address. And I am hopeful that before the legislation we are considering today comes to the floor, that we will be able to work out, 

in an appropriate fashion, language so that it could be incorporated 

in that legislation. 

With that, I yield back. 

Mr. BERMAN. I yield back. 

Chairman SENSENBRENNER. Does the gentleman withdraw his 

amendment? 

Mr. BERMAN. I do. 

Chairman SENSENBRENNER. The amendment is withdrawn. The 

point of order is thus moot. 

For what purpose does the gentleman from California, Mr. Schiff, 

seek recognition? 

Mr. SCHIFF. Thank you, Mr. Chairman. I have an amendment at 

the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Nine, offered by Mr. Schiff and Ms. Waters. Add at 

the end of Section 8, page 9, after line 11, the following new Subsection E: Prohibition on delegation of application for order of production of records from library or bookstore or medical records containing personally identifiable information. Subsection A of such 

Section is amended——

Mr. SCHIFF. Mr. Chairman, I’d ask consent that the amendment 

be deemed as read. 

Chairman SENSENBRENNER. Without objection, and the gentleman is recognized for 5 minutes. 

[The amendment of Mr. Schiff and Ms. Waters follows:] 

201

1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MR. SCHIFF

Add at the end of section 8 (page 9, after line 11)

the following new subsection:

1 (e) PROHIBITION ON DELEGATION OF APPLICATION

2 FOR ORDER OF PRODUCTION OF RECORDS FROM LI3 BRARY OR BOOKSTORE, OR MEDICAL RECORDS, CON4 TAINING PERSONALLY IDENTIFIABLE INFORMATION.—

5 Subsection (a) of such section is amended—

6 (1) by inserting ‘‘, subject to paragraph (3),’’

7 after ‘‘The Director of the Federal Bureau of Inves8 tigation or’’; and

9 (2) by adding at the end the following new

10 paragraph:

11 ‘‘(3) In the case of an application for an order requir12 ing the production of tangible things described in para13 graph (1) from a library or bookstore, or that are medical

14 records, that contain personally identifiable information,

15 the Director of the Federal Bureau of Investigation may

16 not delegate the authority to make such application to any

17 designee.’’.


3199M.AAB
202

Mr. SCHIFF. Thank you, Mr. Chairman. I’ll try to do this in less 

than five. 

This is a very simple amendment to Section 215 that says that 

vis a vis the records that have the most concerns among all of our 

constituents—library records, or bookstore records, or medical 

records—that the existing authority in Section 215, which allows 

the Director of the FBI to delegate to a subordinate the decision 

to seek these records he would not be able to delegate. That is that 

in the limited case of libraries, bookstores, and medical records 

that you could still get them under Section 215, but they’d have to 

be approved by the Director of the FBI himself or herself. 

I imagine, listening to my colleagues on the other side of the 

aisle that—and in particular as far as the Attorney General has 

certified—the library provision has never been used, at least as of 

the last public disclosure. So it would be very seldom that I would 

hope that a library or bookstore or medical record would be sought, 

and I don’t think this would impose an undue burden on the Director of the FBI, and given the sensitivity of this, I think it makes 

sense for the FBI Director and the Director alone to make that decision, not delegate it away. 

The fact that the library record provision may or may not have 

been used at this point doesn’t alter the fact that it affects the behavior of all of our constituents, who are concerned that their 

records might be the subject of search. So I think this added protection is warranted. It won’t inhibit what the FBI does, but it will 

add another layer of safeguard, and I would urge my colleagues’ 

support. 

Ms. LOFGREN. Would the gentleman yield? 

Mr. SCHIFF. Yes. I’d be happy to. 

Ms. LOFGREN. I will support the gentleman’s amendment, but I 

would note, and I guess this is really a question that this is actually a more conservative approach than the House itself took in the 

amendment to the appropriations that essentially prevailed—Mr. 

Sanders’ amendments several weeks ago. Isn’t that correct? 

Mr. SCHIFF. Yes, it is. I mean this doesn’t exclude the ability to 

get these records, but it says in this narrow category of the most 

sensitive information, it’s a decision that the Director of the FBI 

should not be able to delegate to a field agent or a subordinate, but 

should be made at the top. 

Ms. LOFGREN. If the gentleman will further yield. I will support 

the amendment. I actually prefer what the House voted on, and I 

suspect the gentleman may as well. But certainly, what you’ve recommended is an improvement over the laws that exist today, and 

I thank the gentleman for yielding. 

Mr. SCHIFF. I thank the gentlewoman, and I’d be prepared to 

yield back the balance of my time. 

Chairman SENSENBRENNER. The Chair recognizes himself for 5 

minutes in opposition to the amendment. 

The Chair realizes that there have been problems so with the interpretation of Section 215 and that a clarification of procedures 

and standards are in order. 

The Flake Amendment that was adopted this morning does provide a partial clarification. The actual line of authority issue that 

the gentleman from California Mr. Schiff’s amendment deals with 

203

is at the present time being worked out, and will be the subject of 

a floor amendment when we get there next week. 

I would be willing to offer to work with the gentleman from California, Mr. Schiff, and the gentlewoman from California, Ms. Waters, to work out language should they withdraw their amendment 

at this time. 

But if they won’t withdraw the amendment at this time, then I 

would urge the members to vote against it. 

I yield back the balance of my time. 

Mr. SCHIFF. Yeah. Mr. Chairman, I appreciate the offer to work 

together, and I would, given the likelihood of success in Committee, 

accept the Chairman’s invitation to work together on language for 

the floor. 

Chairman SENSENBRENNER. The amendment is withdrawn. Are 

there——

Mr. SCHIFF. Mr. Chairman, since I have withdrawn that, may I 

offer another? 

Chairman SENSENBRENNER. Of course. The clerk will report the 

amendment. 

Does the gentleman from——

Mr. SCHIFF. It’s being provided to the desk, Mr. Chairman. 

Chairman SENSENBRENNER. Does the clerk have a Schiff Amendment? 

Mr. SCHIFF. My staff is bringing it to the desk right now, Mr. 

Chairman. 

Chairman SENSENBRENNER. Perhaps—the Chair will recognize 

another member for offering an amendment and get back to Mr. 

Schiff. The gentleman from New York. Excuse me, the gentleman 

from Florida, Mr. Wexler, has had little to say today. For what purpose do you seek recognition? 

Mr. WEXLER. It’s a compliment for me to be from New York, Mr. 

Chairman. Others may not feel that way, but I do. 

Chairman SENSENBRENNER. Does the gentleman from Florida 

have an amendment at the desk? 

Mr. WEXLER. Yes, I do. 

Chairman SENSENBRENNER. The clerk will report the Wexler 

Amendment. 

The CLERK. Mr. Chairman, I do not have a Wexler Amendment. 

Chairman SENSENBRENNER. Okay. I will now try the gentleman 

from New York, Mr. Weiner. 

Do you have an amendment at the desk? 

Mr. WEINER. Thank you, Mr. Chairman. Mr. Chairman, no. 

Chairman SENSENBRENNER. The clerk will report the Wexler 

Amendment. 

Mr. WEXLER. Thank you, Mr. Chairman. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Wexler of 

Florida. At the end of the bill add the following section preventing 

the revelation of information pertaining to active intelligence 

agents. 

Mr. WEXLER. Mr. Chairman, I move that the——

The CLERK. Section 2239——

Chairman SENSENBRENNER. Reserve the point of order. 

The CLERK. A of Title 18 United States Code is amended by inserting reveals any information pertaining to the identity of underVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00207 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1
204

cover intelligence officers, agents, informants, and sources that the 

person has or should——

Mr. WEXLER. Mr. Chairman, I move the amendment be considered as read. 

Mr. SMITH. Mr. Chair, I reserve a point of order. 

Chairman SENSENBRENNER. The gentleman from Texas reserves 

a point of order, subject to the reservation. Without the objection, 

the amendment is considered as read, and the gentleman from 

Florida will be recognized for 5 minutes. 

[The amendment of Mr. Wexler follows:] 

205

1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MR. WEXLER OF FLORIDA

At the end of the bill, add the following:

1 SEC. ll. PREVENTING THE REVELATION OF INFORMA2 TION PERTAINING TO ACTIVE INTELLIGENCE

3 AGENTS.

4 Section 2339A(a) of title 18, United States Code, is

5 amended by inserting ‘‘reveals any information pertaining

6 to the identity of undercover intelligence officers, agents,

7 informants, and sources that the person has or should

8 have reason to believe would be sufficient to be used to

9 identify a United States intelligence operative, including,

10 but not limited to, the name of the such covert agent, the

11 name of any relative of the agent, current or prior location

12 of the agent, or actions of specific covert agent, or’’ after

13 ‘‘Whoever’’ .


3199N.AAB
206

Mr. WEXLER. Thank you, Mr. Chairman. This amendment would 

expand Section 805 of the bill, which is the section which defines 

material support for terrorism to include acts that assist terrorist 

groups by undermining the safety of our intelligence agents by 

leaking information leading to the disclosure of their identities. 

While it already a crime to knowingly disclose classified information that identifies a covert agent under Title 50, Section 421, of 

the U.S. Code, this amendment would strengthen existing protections by categorizing veiled or leading comments that identify undercover intelligence officers or agents as providing material support for terrorism, especially at this critical juncture when the Federal Government is calling on patriotic Americans to fight our War 

on Terrorism by serving in dangerous intelligence gathering positions. 

We must treat the secrecy of covert agents with the greatest possible care. After the outrageous outing of Valerie Plame as a CIA 

operative, it is time for Congress to send an unequivocal message 

to our intelligence community that we are prepared to do our part 

to protect them, as they risk their lives to protect our nation from 

terrorism. 

Flagrant disregard for the safety of our intelligence officials and 

their contacts is a shameful betrayal of our intelligence community 

and greatly diminishes America’s counter terrorism efforts. 

If brave and patriotic CIA and other intelligence operatives, 

whose unknown and unsung service is so crucial to the safety of 

our nation, are to effectively, objectively, and independently gather 

and analyze intelligence, they must trust absolutely that their 

identities are safe from both knowing admissions and from leading 

comments. 

If we learned anything, just one thing from the catastrophe of 

September 11th, it is when our intelligence officials fail, every 

American becomes vulnerable to attack. CIA and other intelligence 

officials must not fear political retribution, whatever their conclusions or opinions are. They must not be pressured to abridge their 

conclusions and certainly the secrecy of their identities must be 

held sacred. 

Those Americans, no matter how prominent or powerful they 

may be, who compromise the identity of our intelligence operatives, 

are doing nothing short of providing material support for terrorism. 

They undermine the security of the United States and should be 

subject to prosecution under the Patriot Act. 

It is critical that we include extra protection for America’s covert 

agents provided for in this amendment. 

Surely, every member of this Committee condemns the outing of 

Ms. Plame, and I urge you to support the greater security for our 

intelligence operatives that they deserve, which is contained in this 

amendment. 

Thank you, Mr. Chairman. 

Chairman SENSENBRENNER. Does the gentleman from Texas insist upon his point of order? 

Mr. SMITH. Mr. Chairman, it is my understanding that the 

amendment has been redrafted and is now marginally germane, so 

I will withdraw my point of order. 

Chairman SENSENBRENNER. Okay. The gentleman from Iowa, 

Mr. King. 

207

Mr. KING. Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. KING. I thank the Chairman and, you know, I listen with 

amazement to this amendment as it’s being described by the gentleman from Florida, and I think I read about four words into this 

amendment before I identified this as the Carl Rove Amendment. 

And, you know, I’m wondering why it’s not the Sandy Berger 

Amendment. I mean he really did have paper in his socks, and 

there really was something substantive there, but I didn’t see any 

action on your part during that entire minimal and quiet investigation that took place. 

And this is a serious business that we’re ahead here marking up 

the PATRIOT Act, and there are a lot of amendments to be dealt 

with today, but this doesn’t belong in this bill. 

It’s already a crime to divulge this information. And it isn’t material support. It’s a different definition. Material support is very 

clear and to expand it in this fashion, and then add, add the language that the person has or should have reason to believe would 

be sufficient to be used to identify a United States intelligence operative or should have reason to believe is about as ambiguous as 

anything I’ve ever read and anything that’s come before this Committee. Who’s going to make the judgment on what they should 

have had reason to believe? Can we make that today or can we do 

that after the fact? 

So this redefines material support as something that’s not material support. It’s already a crime. There’s already a way to deal 

with this, and that will be dealt with in due course in a proper 

fashion, and it should not be dealt with in the political field here 

while we’re marking up a very important serious bill that’s going 

to be protecting the safety of all the people in this nation for the 

next generation to come. 

So I’d urge a no vote on the Wexler Amendment, and I’d yield 

back the balance of my time. 

Chairman SENSENBRENNER. For what purpose does the gentleman from California, Mr. Berman, seek recognition? 

Okay. The gentleman from New York, Mr. Weiner? 

Mr. WEINER. I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized. 

Mr. WEINER. First of all, let the record indicate that now the consensus in the nation is complete regarding Carl Rove, and it even 

includes the majority members of the Judiciary Committee. And 

with that, I yield to my colleague from Florida, Mr. Wexler. 

Mr. WEXLER. Thank you. I specifically didn’t mention any names. 

But since the gentleman from Iowa did——

Mr. KING. Would the gentleman yield? 

Mr. WEXLER. No, no, no. 

Mr. KING. Valerie Plame would be a name. 

Mr. WEXLER. I’m sorry? 

Mr. KING. Would the gentleman yield. 

Mr. WEXLER. Sure. 

Mr. KING. Valerie Plame would be a name that you mentioned 

in your remarks——

Mr. WEXLER. That’s true. 

208

Chairman SENSENBRENNER. The time belongs to the gentleman 

from New York. 

Mr. WEXLER. Yes, I did. I didn’t mention any names in terms of 

people in the context of alleged violation of law. But since the gentleman from Iowa did, I think it’s appropriate to respond in the 

context of Mr. Rove. 

The present standard used to protect the identity of undercover 

agents actually criminalizes the knowing disclosure of classified information that identifies that covert agent, as the gentleman from 

Iowa so correctly pointed out. 

It’s clear, however, that Mr. Rove knew about the prohibition and 

carefully designed his comments to be revealing enough to lead a 

reporter to undercover Ms. Plame’s identity without revealing Ms. 

Plame’s actual name or affiliation outright. The effect, however, on 

the safety, security, and the ability of our undercover agents to do 

their job is exactly the same. 

Whether his unquestionably egregious actions qualify as a violation of current law is obviously still under review. I’m not offering 

an opinion. 

But what I do know is that our covert agents deserve the greatest possible degree of protection, not something that could possibly 

be circumvented with if I only say it this way, I’ll avoid the law, 

but the effect will be the same: an undercover CIA agent, her or 

his identity, will be disclosed to the entire world, thereby, jeopardizing our intelligence operation. 

The amendment would simply provide a broader standard of protection for the identity of undercover agents by amending Section 

805 of the PATRIOT Act to include any information pertaining to 

the identity of an undercover intelligence officer. That’s the least 

we should do to make certain that our CIA and intelligence officers 

have their identities protected. 

This is bigger than Mr. Rove. It’s bigger than any individual——

Mr. BERMAN. Would the gentleman yield? 

Mr. WEXLER. I yield to the gentleman from California? 

Mr. BERMAN. I thank the gentleman for yielding. Before the gentleman from Iowa gets too distraught about an amendment that 

proposes as a criminal standard has or should have reason to believe, I’m wondering if he had any information about how many of 

our criminal statues that can impose imprisonment or fines have 

that standard already in the law, because I haven’t noticed any 

particular concern about narrowing the breadth of that phrase in 

the existing statutes. 

Mr. KING. Would the gentleman yield? 

Mr. CONYERS. Would the gentleman yield? 

Chairman SENSENBRENNER. Time belongs to the gentleman from 

New York. 

Mr. WEINER. I yield to the gentleman from Michigan. 

Mr. CONYERS. I thank the gentleman for yielding. The Wexler 

Amendment, members of the Committee, simply extends the Section 805 to cover the specific case where, by using veiled references, 

you end up naming the person without putting the spelling of the 

name and the name of the organization. 

And for that reason, it’s a very important extension because this 

could be used again and again and again by people who want to 

avoid what the law presently provides to get around it. So I think 

209

this is a very useful and important amendment. I thank the gentleman. 

Mr. WEINER. And just reclaiming my time, you know, so far, 

we’ve heard the opponents to amendments that would seek to ban 

guns being sold to terrorists as silly. Something that seeks to make 

the laws tougher on leaking the names of covert operatives that 

could get them killed, it’s being called political. Perhaps one of 

these amendments will be considered on its merits one of these 

days; that you’ll say I don’t believe that we should conceal the identity of covert operatives. I don’t believe that we should prevent 

guns from coming into the hands of terrorists. 

Let’s have—this is an opportunity for us here to discuss the merits of some of these things, and I would encourage my colleagues 

to take the opportunity to do it. 

You know, a pedantic it’s silly or it’s political does not do anything to diminish the merit of it, and I urge a yes vote on the 

Wexler Amendment. 

Chairman SENSENBRENNER. The gentleman’s time has expired, 

and the Chairman is to strike the last word and recognizes himself 

for 5 minutes. 

It’s no secret that there has been a special prosecutor that has 

been appointed by the Attorney General to look into the entire 

issue. 

That special prosecutor is well known as a bulldog in the prosecutorial community and let’s the chips fall where they may. I believe in his role as U.S. Attorney for the Northern District of Illinois, he indicted the former Republican governor of that state. 

I don’t think any of us can say whether the law on disclosing the 

names of covert CIA agents is adequate or inadequate until that 

special prosecutor issues his report, and either indicts people or decides that there is insufficient evidence to indict people. 

This is a serious issue, but until Mr. Fitzgerald completes this 

investigation, I honestly think that we really do not know how useful or not useful the current law is in tracking down those that disclose the names of covert CIA agents. 

I think my Ranking Member and I and perhaps Mr. Lungren, 

who were here at the time in the early ’80’s, remember that we 

dealt with this issue in terms of drafting the current criminal statute, extensively. And while that statute has never really come into 

play before now, I think it is into play now. I would also point out 

that even though the name of Carl Rove has been mentioned, this 

law would have no—or this proposed amendment would have no 

application to any case that may or may not involved Mr. Rove, because if this was enacted today, it would be an ex post facto law 

and the circumstances relative to the leaking of Ms. Plame’s name 

to reporters for the news media could not be prosecuted under the 

law that is proposed by the Wexler Amendment. 

For all these reasons, I would urge the defeat of this amendment. 

Ms. WASSERMAN SCHULTZ. Mr. Chairman? 

Chairman SENSENBRENNER. The gentlewoman from Florida, Ms. 

Wasserman Schultz. 

Ms. WASSERMAN SCHULTZ. Thank you, Mr. Chairman. I move to 

strike the last word. 

Chairman SENSENBRENNER. The gentlewoman is recognized for 5 

minutes. 

210

Ms. WASSERMAN SCHULTZ. Thank you, Mr. Chairman. Although 

the Chairman just said that he’s not sure where we should be 

going on this, and that it’s something that we should probably be 

looking at, I wanted to cite for you the remarks of George Herbert 

Walker Bush, the 41st President of the United States. In his 

speech at the dedication ceremony for the George Bush Center for 

Intelligence on April 26th of 1999, he said these are our enemies. 

‘‘To combat them, we need more intelligence, not less. We need 

more human intelligence. That means we need more protection for 

the methods we use to gather intelligence and more protection for 

our sources, particularly our human sources, people that are risking their lives for their country. 

‘‘Even though I’m a tranquil guy now at this stage of my life, I 

have nothing but contempt and anger for those who betray the 

trust by exposing the name of our sources. They are, in my view, 

the most insidious of traitors.’’

It is pretty clear that we need more protection and not less in 

the law, and of all places to insert that protection, I would think 

it would be appropriate to insert it in the PATRIOT Act. And the 

gentleman from Iowa earlier stated that he could not—that he has 

not seen less more vague language than the language in the gentleman from Florida’s amendment. One has only to peruse the vast 

majority of the PATRIOT Act to look and find vague language 

when it comes to the protections that are afforded to people who 

deserve quite a bit more certainty and clarity in the law than the 

PATRIOT Act affords them. 

Mr. KING. Would the gentlelady yield? 

Ms. WASSERMAN SCHULTZ. Yes. 

Mr. KING. I thank the gentlelady, and I—the reason that I said 

I haven’t seen language this ambiguous is because of the phrase or 

should have reason to believe. And I didn’t believe when I said 

that, that that language existed anywhere in the U.S. Code and 

since that time we’ve confirmed that that language doesn’t exist 

anywhere in the U.S. Code, so I think that would be a solid statement that this is very ambiguous, and I thank and I yield back. 

Mr. BERMAN. Would the gentlelady yield? 

Ms. WASSERMAN SCHULTZ. Yes. 

Mr. BERMAN. Has the gentleman looked at the Foreign Corrupt 

Practices Act in making this decision, the conclusion about the U.S. 

criminal statutes? 

Mr. KING. We had staff search the entire code. 

Ms. WASSERMAN SCHULTZ. Mr. Chairman, I’ve reclaimed my 

time. 

Mr. KING. I can’t answer specifically. 

Mr. BERMAN. If I—may I just? 

Ms. WASSERMAN SCHULTZ. Yes. I’ll yield to the gentleman from 

California. 

Mr. BERMAN. It is my belief, based on working on this statute in 

the days when only Mr. Sensenbrenner and Mr. Hyde and Mr. 

Lundgren and Mr. Conyers would remember that one of the clear 

standards or vague standards in the Foreign Corrupt Practices Act 

is that when you pass money to your corporate agents, that if you 

knew or should have had reason to know that that—knew or 

should have reason to know that that money was going to be used 

211

to bribe a foreign government official for corrupt purposes that is 

a crime. I’m unclear about what code you searched? 

Mr. WEXLER. Would the gentleman yield? 

Chairman SENSENBRENNER. Time belongs to the gentlewoman 

from Florida, Ms. Wasserman Schultz. 

Mr. WEXLER. Will the gentlelady yield? 

Ms. WASSERMAN SCHULTZ. I yield to the gentleman from Florida. 

Mr. WEXLER. How about we make a deal? If Mr. King is right 

and the language is not in the U.S. Code, and, therefore, it is so 

nebulous, I’ll withdraw the amendment. But if it is in the U.S. 

Code, then we accept it, because then, clearly, it’s not nebulous, 

and we’ve got the criminal law that already exists. That’s fair; 

right? 

Mr. KING. If the gentlelady would yield? 

Chairman SENSENBRENNER. Will the gentlewoman from Florida 

yield? 

Ms. WASSERMAN SCHULTZ. I will. 

Chairman SENSENBRENNER. As the honest broker here, maybe 

the gentleman could withdraw his amendment, and we can look 

further in the U.S. Code, and he can always reoffer it. 

Mr. WEXLER. What did I get out of that deal? 

Chairman SENSENBRENNER. The commitment you can reoffer it. 

Mr. WEXLER. The Chairman certainly seems quite genuine, so I 

would respect his wishes if that’s the case. 

Chairman SENSENBRENNER. The amendment is withdrawn. Are 

there further amendments? 

Mr. SCHIFF. Mr. Chairman, I have that amendment at the desk 

now. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Schiff, has an amendment at the desk. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Schiff. At 

the end of the bill add the following new section. Section Prohibition on Planning Terrorists Attacks on Mass Transportation. Section 1993 (a)(3) of title 18, United States Code is amended a) by 

redesignating paragraphs 6 through 8 as 7 through 9, respectively, 

and b) by inserting after paragraph 5 the following: 6. Surveils, 

photographs, videotapes, diagrams or otherwise collects information with the intent to plan or assist in planning any of the acts 

in the preceding paragraphs. 

[The amendment of Mr. Schiff follows:]

212

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Schiff, is recognized for 5 minutes. 

Mr. SCHIFF. Thank you, Mr. Chairman. This amendment is fairly 

straightforward. It amends the section of the PATRIOT bill that 

was designed to strengthen the criminal laws against terrorism in 

Section 801 of the PATRIOT bill. And it provides that if you were 

involved in surveilling, photographing, videotaping, diagraming or 

otherwise collecting information about a mass transit system with 

the intent to plan or assist in basically committing a terrorist act 

against that mass transit system, that ought to be a prohibited offense——

Chairman SENSENBRENNER. Will the gentleman yield? 

Mr. SCHIFF. Yes, Mr. Chairman. 

Chairman SENSENBRENNER. I think it should be a prohibited offense, too, and I am happy to accept the amendment. 

Mr. SCHIFF. Thank you, Mr. Chairman. And I would yield back 

the balance of my time. 

Mr. NADLER. Mr. Chairman, a point of inquiry. 

Chairman SENSENBRENNER. The rules don’t call for a point 

of——

Mr. NADLER. I just have a question. 

Chairman SENSENBRENNER. Okay. Well, if maybe the gentleman 

should California should not yield back. 

Mr. SCHIFF. I think I’d be yielding to the gentleman——

Chairman SENSENBRENNER. And yield to the gentleman from 

New York. 

Mr. NADLER. Thank you. I have a question. Under your amendment, it’s an element of the crime that he has to have the intent 


3199O.eps
213

to plan or assist. So if someone is simply photographing, you’d have 

to prove intent? 

Mr. SCHIFF. Absolutely. 

Mr. NADLER. Okay. I think it’s a good amendment, and I thank 

the gentleman. 

Chairman SENSENBRENNER. Okay. The question is on agreeing to 

the amendment offered by the gentleman from California, Mr. 

Schiff. Those in favor will say aye? Opposed, no? 

The ayes appear to have it. 

Ms. LOFGREN. Mr. Chairman? 

Chairman SENSENBRENNER. Does the gentlewoman from California want a rollcall? 

Ms. LOFGREN. No, I was just trying to be recognized for an 

amendment. 

Chairman SENSENBRENNER. Well, the ayes appear to have it on 

the Schiff Amendment. The ayes have it. And the amendment is 

agreed to. 

For what purpose the gentlewoman from California, Ms. Lofgren, 

seek recognition? 

Ms. LOFGREN. I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

Ms. LOFGREN. Number five. 

The CLERK. Amendment to H.R. 3199 offered by Ms. Lofgren of 

California. Add the end of the bill, add the following: Section, Preventing the Transfer of 50-Caliber Sniper Weapons to Terrorists. 

Section 2239 (A) of Title 18 United States Code is amended 1) in 

Subsection A by inserting 1) transfers 50 caliber sniper weapon to 

an individual knowing that the individual is a member of al-Qaeda, 

or 2) after whoever and 2) in Subsection——

Ms. LOFGREN. I’d ask unanimous consent that the amendment be 

considered as read. 

Chairman SENSENBRENNER. Without objection, so ordered. The 

gentlewoman is recognized for 5 minutes. 

[The amendment of Ms. Lofgren follows:]

214

Ms. LOFGREN. This is a simple and commonsense amendment 

that would punish those who sell dangerous rifles to known terrorists who are al-Qaeda members. I think the case for the amendment is clear and immediate. It’s not a gun control issue. It’s a national security issue. Fifty caliber anti-armor sniper rifles are an 

ideal tool for terrorists. Armored personnel carriers, rail cars carrying hazardous materials and most disturbingly civilian aircraft 

are vulnerable to these types of rifles. 

In fact, even early promotional materials for the 50-caliber rifle 

referenced their threat to civilian aircraft. The promotional materials state that the weapon could target, and I quote: ‘‘the compressor section of jet engines, making it capable of destroying 

multi-million dollar aircraft with a single hit delivered to a vital 

area.’’ The rifle’s brochure goes on to say that the cost effectiveness 

of the 50-caliber cannot be overemphasized when a round of ammunition purchased for less than $10 can be used to destroy or disable 

a modern jet aircraft. 

The military also recognizes this threat. A 1995 Rand report inspired the Air Force to train a special counter sniper team to respond to the 50-caliber sniper threat to its aircraft and personnel. 

Since 9/11, our country has made great efforts to secure our civilian 

airplanes and airports. Terrorists will obviously adapt to our tactics, so it’s vital that we think ahead. It doesn’t take a rocket scientist to figure out that if we make it difficult to get weapons on 

a plane or into an airport, terrorists may look to destroy airplanes 

from longer distances, and that’s what the 50-caliber rifle is designed to do. 

These rifles are accurate at ranges of at least 1,000 yards and 

even further in the hands of trained marksman. In essence, these 

weapons could give a terrorist the ability to take a shot at an aircraft from beyond most airport security perimeters. 


3199P.eps
215

There is already evidence that terrorists have sought these weapons. According to the Violence Policy Center, al-Qaeda bought 25 

50-caliber anti-armor sniper rifles in the 1980’s. 

Although I personally believe that these weapons should be outlawed altogether, this amendment doesn’t do that. It’s more modest. 

It simply provides that if you transfer a 50-caliber rifle to someone who you know is a member of al-Qaeda, that you will be guilty 

of providing material support for terrorism. In truth, this Congress 

should outlaw the transfer of any type of weapon to a person who’s 

on the Terrorist Watch List, as Mr. Van Hollen suggest earlier. But 

today, at the least, let’s outlaw the transfer of armor piercing, longrange sniper rifles to known al-Qaeda members. I don’t see how 

anyone on this Committee could oppose that goal. 

Preventing terrorism on our shores does not only mean securing 

our borders, it means preventing terrorists from obtaining the 

weapons they need to carry out their destructive acts. 

This modest amendment will help to do that, and I urge my colleagues to support it. I would note that the discussion of—that we 

had under Mr. Van Hollen’s amendment is avoided here. There 

need be no discussion, as my colleague from California indicated 

earlier about whether or not a list is accessible, whether it is classified. This amendment simply says if you know that the person 

you’re selling a 50-caliber weapon to is an al-Qaeda member, then 

you fall within the statute. 

So I hope that this amendment will be supported. I cannot imagine why anyone would not support it. And, Mr. Weiner, are you 

asking for—and I would yield back the balance of my time. 

Mr. LUNGREN. Would the gentlelady yield? 

Ms. LOFGREN. I would yield. 

Mr. LUNGREN. Or just a question. 

Ms. LOFGREN. Yes. 

Mr. LUNGREN. And that is can the gentlelady tell me whether or 

not this activity is currently prohibited under current law. Because 

as I read it, it says whoever knowingly provides material support 

or resources to a foreign terrorist organization. This would be material support or resources. al-Qaeda is an identified foreign terrorist organization; is involved in a prohibited activity. So I’m just 

asking——

Ms. LOFGREN. Well, no. 

Mr. LUNGREN. Yours appears to be more narrowly drawn than 

what the general law is now——

Ms. LOFGREN. No, because this would not be to al-Qaeda generally. It would be any member, any member of al-Qaeda. 

Mr. LUNGREN. Well, as I understand—maybe someone could tell 

me if I’m wrong. But as I would understand it, if you give it to——

Ms. LOFGREN. I think you are. 

Mr. LUNGREN.—individual as a member of a terrorist organization, that could be deemed as giving material support to the terrorist organization. 

Ms. LOFGREN. This makes us very—you’ve got a deeming in 

there that I don’t think the statute has clearly identified. 

This makes it all totally clear. If you know that the person who 

is buying this 50-caliber weapon is an al-Qaeda member, then 

you’ve fallen afoul of the statute. 

216

Chairman SENSENBRENNER. The gentlewoman’s time has expired. The gentleman from Iowa, Mr. King. 

Mr. KING. Thank you, Mr. Chairman. 

Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. KING. I thank the Chairman, and I—you know, I have 

watched this consistent approach to the 50-caliber weapons consistently the last few years. I don’t really know why the 50-caliber 

weapons have been demonized, but it continues. 

And I’d inform the Committee a little bit of the history of 50-caliber weapons. They go back. I call them the original buffalo guns, 

the Sharps 50-caliber. Buffalo Bill Cody. They were the guns that 

settled the West. 

They’re a traditional gun in this country. They’re hanging in the 

Smithsonian. There’s more modern versions, of course, like there 

are with many other calibers of weapons. 

To pick on the 50-caliber, if you could do that successfully, then 

you’re going to see a 51-caliber, a 49-caliber. But that’s not necessarily the point of this amendment. 

And I concur with the gentleman from California in that there’s 

already—it’s already against the law to transfer these weapons to 

al-Qaeda members today, but I believe the flaw in this amendment 

is that it’s only al-Qaeda. 

And if you address al-Qaeda and say we cannot then send 50-caliber weapons to them, which I believe is against the law under the 

current code, then, by implication, if you continue adding to this 

section of the code, you’re going to see the implication that you can 

transfer to maybe some other terrorist organization that’s on that 

list of 41 terrorist watch lists. 

Ms. LOFGREN. Would the gentleman yield? 

Mr. KING. I would yield. I yield to the lady from California. 

Ms. LOFGREN. If this would pass, I would happily offer additional 

amendments with additional terrorists organizations. 

Mr. KING. Reclaiming my time, I appreciate the alertness of the 

gentlelady from California, and I yield back to the gentleman from 

California. 

Mr. LUNGREN. I’m just trying to figure out how you give something to an organization without giving it to an individual? 

Does someone give the weapon to the corporate organization alQaeda? It seems to me it’s inherent in the already existing statute 

that one gives a weapon to a member of a terrorist organization; 

one is giving to the terrorist organization knowingly, knowingly; 

knowing that the individual is a member. 

So I think what the gentlelady is suggesting is already covered 

and it doesn’t have to be a 50-caliber. It could be any type of weapon as I read the statute currently. 

Mr. KING. Reclaiming my time. And I’d add that the ammunition 

that’s referenced by the gentlelady as ammunition is very strictly 

controlled ammunition. There’s never been a jet or a plane shot 

down by a 50-caliber weapon, and it would be unlikely I think to 

ever get that perfect lucky shot at a moving jet for that to ever 

happen; but other calibers to do it as well under the same scenario. 

I’d yield to the gentleman from Texas. 

Mr. NADLER. Would the gentleman yield? 

217

Mr. GOHMERT. Well, he’s yielded to me. Thank you. I appreciate 

the gentleman from Iowa. 18 U.S.C. Section 2, this is the Federal 

Criminal Code. It says whoever commits an offense against the 

United States or aids, abets, counsels, commands, induces, procures its commission is punishable as a principal. And I’m telling 

you what. That’s pretty stout evidence. I’ve seen a whole lot less 

evidence convict and accomplice as a principal. If you transfer any 

kind of weaponry to a member of al-Qaeda, and you know they’re 

a member of al-Qaeda, I’d say pretty well most everywhere except 

certain counties in California, you’re toast. You’re going to be convicted as a principal and I’d a whole lot—rather than be convicted—I’m sorry—deference to the gentleman from California. 

But the law takes care of this already. You do anything knowing 

that somebody is a member of a terrorist organization, you’re going 

to be a principal as a terrorist yourself. Thank you. I yield back to 

Mr.——

Mr. KING. I thank the gentleman from Texas and I would add 

that this amendment, though it maybe it’s well intentioned, it does 

clutter the code. It’s clearly prohibited in the existing code that we 

have, and I’d urge a no vote on the amendment. I yield back. 

Mr. WATT. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from North Carolina, 

Mr. Watt. 

Mr. WATT. Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. WATT. I guarantee you I won’t take 5 minutes. I just want 

to submit somewhere in the record the Barney Frank statements 

from years gone by when he served on this Committee. Redundancy is sometimes good. And when we hear people saying that the 

only objection that they have to something is because it’s already 

in the statute, and is redundant, then you know—then you know 

they’ve kind of lost the way here. 

Our statutes are replete with redundancies, and the fact that 

this may already be covered—may that doesn’t trouble me at all. 

I’m wisely in favor of redundancy on this issue to make it absolutely clear. 

Ms. LOFGREN. Would the gentleman yield? 

Mr. WATT. I yield to the gentlelady. 

Ms. LOFGREN. I appreciate his comment. I don’t believe it is redundant, but if it is, I heartily concur that to be clear on this matter is to defend our country, and I would hope—I understand that 

we have a different point of view, and it’s not entirely just based 

on party lines either. Certainly, Mr. Boucher has voted with the 

majority on all of the gun issues, and he’s not here now. But the—

this goes beyond the fight on gun ownership. And if we can’t vote 

yes on this, I think we got some explaining to do, and I thank the 

gentleman for yielding. 

Mr. WATT. I yield back. 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Nadler. 

Mr. NADLER. Thank you, Mr. Chairman. I rise in support. I move 

to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

218

Mr. NADLER. I rise in support of this amendment and associate 

myself with the remarks of the gentlelady from California. 

But I hadn’t planned to speak on this amendment, but I had to 

correct the record in one respect. I heard someone say that no jet 

aircraft has ever been shot down by a 50-caliber weapon. I beg to 

differ. Anyone who knows anything about the history of the Korean 

War knows that every jet aircraft shot down by another jet aircraft 

in the Korean War was shot down by a 50-caliber weapon. 

The MIGs and the F-86s and the F-80’s were all armed with——

Mr. KING. Would the gentleman yield? 

Mr. NADLER. With 50-caliber machine guns. That’s how you shot 

down airplanes before you got the missiles. So don’t tell people that 

you can’t shoot down a jet aircraft——

Mr. KING. Would the gentleman yield? 

Mr. NADLER.—with a 50-caliber weapon. Yes, I’ll yield. 

Mr. KING. I thank the gentleman. I’m referencing the definition 

that’s in the amendment, which is a sniper rifle rather than twin 

50-caliber machine guns. Thank you. 

Mr. NADLER. Well, reclaiming my time, as was said before, a 

lucky shot from a even—not a machine gun, but from one—any—

a 50-caliber weapon can, in fact, penetrate armor. It can shoot 

down an aircraft. It’s dangerous. I yield back. 

Mr. WEINER. Will the gentleman yield on that point? 

Mr. NADLER. Yes, I yield back. 

Mr. WEINER. And I would also point out that I don’t believe that 

an aircraft had been used as a weapon before September 11th in 

an act of terrorism against the United States as well. 

If our standard is to simply wait for some things to be used before we ban it, I would argue that we wait too long. And I yield 

back to the gentleman. 

Mr. NADLER. And I yield back. 

Chairman SENSENBRENNER. The gentlewoman from California, 

Ms. Waters. 

Ms. WATERS. Thank you very much, Mr. Chairman and members. There must be people listening to this discussion and debate 

and wondering how we could spend so much time on this issue of 

whether or not we’re going to ban a weapon from being given to 

or sold to terrorists, when, in fact, we’re here talking about the reauthorization of the PATRIOT Act and how we can secure the 

homeland and make sure that we create public policy that will better secure the homeland even at the risk of undermining our civil 

liberties. 

So you have an amendment that’s clear. It has been argued that 

it’s redundant; that it’s already in law, and then I cannot help but 

raise the question so what harm will it do to reinforce what is existing law. Why is it a resistance so strong from the opposite side 

of the aisle on something that obviously can do no harm, but could 

better identify the meaning of the law as it relates to the transfer 

of arms to a terrorist organization? 

It seems to me something else underlies this. Something else is 

at stake. What is it? What is this protection that is being offered 

from my friends on the opposite side of the aisle? Is it the sole argument that if you open the door in any way to limit the possession 

and the use and the ownership of guns, that somehow you’re going 

to fly in the face of my friends of the gun lobby. 

219

Mr. WATT. Would the gentlelady yield? 

Ms. WATERS. Yes, the gentlelady will yield. 

Mr. WATT. I heard that you were out meeting with Barney Frank 

before you made this statement. It sounds like he rubbed off on you 

on this redundancy issue. You’re giving his speech. 

Ms. WATERS. Well, this is my speech, Mr. Watt, and if you will 

sit back and listen to it——

Chairman SENSENBRENNER. Without objection, the copyright law 

is suspended for the next 3 minutes. 

Ms. WATERS. That’s right. So let me just continue with my 

speech and my take on this that says again that I think this is better an argument for why those on the opposite side of the aisle who 

would like to protect the gun lobby rather than a concern, a genuine concern, about bending over backwards to ensure that we secure the homeland and that we do everything possible to keep 

weapons out of the hands of terrorists. 

Now, we’ve not had that part of the discussion. We have this discussion that’s camouflaged about redundancy and a whole lot of 

other things. But the fact of the matter is it certainly is not going 

to do any harm. 

So I would suggest that we hurry up again, Mr. Chairman, and 

get to the vote, because I want to see the votes cast on this one. 

So move it, Mr. Chairman. 

Chairman SENSENBRENNER. The time of the gentlewoman has expired. The gentleman from Texas, Mr. Smith. 

Mr. SMITH. Okay. Thank you, Mr. Chairman. I’d like to ask a 

couple of questions or direct a couple of questions to the gentlewoman from California, Ms. Lofgren. And let me say at the outset 

that I don’t doubt her sincerity or her motive in offering this 

amendment. 

But I have two concerns. The first deals with the language where 

in the amendment it refers to a member of al-Qaeda. That’s a specific and single organization; whereas, the statute, paragraph 2.339 

refers to foreign terrorist organization, which might include many 

more terrorist organizations than just the ones she referred to. 

Now, I realize that she can really do that under unanimous consent and insert that phrase. So let me mention my second concern, 

and it this: that as the gentlewoman knows when you interpret legislation, specific language holds greater sway than more general 

language, and I am concerned that by specifically mentioning a 

type of weapon here, the 50-caliber sniper gun or weapon, that that 

might, by implication, mean that other types of weapons, other 

types of arms might not be taken as seriously under the usual limitation of legislation. 

So those are my two concerns and the reason that I would oppose 

the amendment, and the gentleman from California is welcome to 

respond to those concerns. 

Ms. LOFGREN. Mr. Smith, I drafted this because I felt that in a 

way it was a test to see if there was anything that regulating guns 

and terrorists that would pass your side of the aisle. 

If—first of all, if you feel that an amendment to clarify the terrorist heading needs to be made, I would move that we unanimously——

Mr. SMITH. Reclaiming my time, I was aware that you——

Ms. LOFGREN.—we do that by unanimous consent. 

220

Mr. SMITH.—probably ask for UC for that, but my second concern 

was again the specificity that is mentioned in your amendment 

might undermine the intent in regard to other types of weapons. 

Ms. LOFGREN. If—I don’t believe it does, but on that point, if I 

may, I would ask unanimous consent to strike the reference to 50 

calibers and make it any firearms, if the gentleman is suggesting 

that. 

Mr. SMITH. Well, I still think you run into the same problem because——

Ms. LOFGREN. Firearms or weapon. 

Mr. SMITH.—the statute goes beyond firearms and weapons. It 

talks about all—what’ the—if the gentlewoman wants to take a 

look at it, it talks about all material support. Material support is 

a lot broader than just weapons or firearms. 

Mr. LUNGREN. Would the gentleman from Texas yield? 

Mr. SMITH. And so my concern would still hold I’m afraid. 

Mr. LUNGREN. Would the gentleman from Texas yield? 

Mr. SMITH. Yes. Be happy to yield. 

Mr. LUNGREN. I mean specifically by the statute, as the gentleman refers to, material support of resources means all sorts of 

things, including weapons, lethal substances, explosives, personnel, 

transportation, other physical assets. So it is all inclusive. Obviously, the caliber and every other caliber——

Ms. LOFGREN. Would the gentleman yield? 

Mr. LUNGREN.—is included within the statute already. 

Mr. SMITH. It’s my time and, yes, I’ll yield. 

Ms. LOFGREN. It seems to me that your side of the aisle can’t 

have it both ways. Either it’s already included or else it’s—the 

specificity does not cause harm. It can’t be both. 

Mr. SMITH. Yes, it can. I’ll reclaim my time, and I don’t want to 

belabor the point. But the point is the statute is general. I think 

it’s better to not single out any particular type of weapon or firearm. It’s better to leave the statute general and have the entire 

section applied to any type of material support and not by implication say that some material support is more serious or less serious 

than others, and I’ll yield back the balance of my time. 

Chairman SENSENBRENNER. The gentleman from Maryland, Mr. 

Van Hollen. 

Mr. VAN HOLLEN. Thank you, Mr. Chairman. I move to strike 

the last word, and I hadn’t——

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. VAN HOLLEN.—intended to join in this debate, but since we 

are focused in specifically on the language in the section that already exists in the PATRIOT Act regarding providing material support; and the argument is this is redundant. It is not. If you look 

at the existing language, one of the elements of proving somebody 

guilty of aiding material support here is they have to not just know 

that they’re transferring to a member of al-Qaeda, but they have 

to have knowledge or intending that they are to be used in preparation for and carrying out in violation of certain acts. 

And the mere transfer of the weapon under this—even if you 

know it’s someone under al-Qaeda—is not covered by this section, 

providing material support, which is one of the reasons we offered 

the earlier amendment that related to transferring firearms to peoVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00224 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1
221

ple who were on the terrorist watch list. You can’t have it both 

ways. You can’t say this is too narrow because it only says alQaeda and doesn’t cover other terrorist organizations. You can’t say 

it’s too narrow. It only covers 50-caliber and not all firearms, because the earlier amendment that you rejected covered people on 

the Terrorist Watch List and it covered all firearms. 

And so what this amendment gets at is a very—it really does go 

just to how far we’re willing to go in terms of providing terrorists 

with protections under the law. 

And what this amendment does is says it is a—you are offering 

material support if you transfer a weapon, knowing someone is a 

member of al-Qaeda. The current language does not make that a 

crime. That does not make it part of providing material support. 

Under the current law, you not only have to know you’re providing 

to al-Qaeda, but you have to prove that the individual knew that 

al-Qaeda member was going to then use that weapon in a criminal 

action. 

I think we can reasonably conclude that if you know you’re transferring it to a member of al-Qaeda, that the protection of the American people requires that that, by itself, be considered requiring 

material support, and that’s what this amendment——

Ms. LOFGREN. If the gentleman would yield. I thank the gentleman for his clarification, and I guess, you know, you might 

know—not know what the al-Qaeda member wanted to do with the 

50-caliber rifle. Maybe they wanted to use in that traditional buffalo gun referenced by our colleague from the other side of the 

aisle. But it’s a balance. What’s more important? The security of 

the American people or some mythic buffalo gun history when 

you’re talking about a member of al-Qaeda? 

I would just like to say this. I think that it’s obvious that the 

members on the other side of the aisle are not going to accept this. 

I think the rationale for avoiding this has been tortured at best. 

I think it’s quite transparent and unfortunate. And I yield back to 

Mr. Van Hollen, and thank you for yielding me the time. 

Mr. VAN HOLLEN. I thank my colleague, and I just want to again 

emphasize the point that the existing language in this section on 

material support does not cover the contingency that the Lofgren 

Amendment covers. Thank you. 

Chairman SENSENBRENNER. Would the gentleman yield back? 

The question is on the amendment offered by the gentlewoman 

from California, Ms. Lofgren. Those in favor will say aye. Opposed 

no? 

Noes appear to have it. 

Ms. LOFGREN. May I have a recorded vote, Mr. Chairman? 

Chairman SENSENBRENNER. A recorded vote is ordered. Those in 

favor of the Lofgren Amendment will as your names are called answer aye. Those opposed, no. And the Clerk will call the roll. 

The CLERK. Mr. Hyde? 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. Mr. Coble? 

[No response.] 

The CLERK. Mr. Smith? 

[No response.] 

The CLERK. Mr. Gallegly? 

Mr. GALLEGLY. No. 

222

The CLERK. Mr. Gallegly, no. Mr. Goodlatte? 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

[No response.] 

The CLERK. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. Mr. Meehan? 

223

[No response.] 

The CLERK. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their vote? The gentleman from North Carolina, Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Chairman SENSENBRENNER. The gentleman from Texas, Mr. 

Smith? 

Mr. SMITH. Mr. Chairman, I vote no. 

The CLERK. Mr. Smith, no. 

Chairman SENSENBRENNER. The gentleman from Utah, Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their votes? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 13 ayes and 22 noes. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. Are there further amendments? 

The gentleman from New York, Mr. Weiner. 

Mr. WEINER. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

Mr. WEINER. Two one two. Area code for some of New York City. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Weiner and 

Ms. Sa ́nchez. At the end of the bill, add the following new section. 

Section——

Mr. WEINER. Mr. Chairman? 

The CLERK. Expansion of grants to first responders——

Mr. WEINER. Mr. Chairman? 

Mr. SMITH. Mr. Chairman, I reserve a point of order. 

Chairman SENSENBRENNER. Point of order is reserved. The gentleman from New York. 

Mr. WEINER. Mr. Chairman, this is an amendment that——

Chairman SENSENBRENNER. Does the gentleman ask unanimous 

consent that the amendment be considered as read? 

Mr. WEINER. I thought that had already been done. Yes, I do, 

Mr. Chairman. 

224

Chairman SENSENBRENNER. Without objection, subject to the reservation by the gentleman from Texas. The gentleman from New 

York is recognized for 5 minutes. 

[The amendment of Mr. Weiner and Ms. Sa ́nchez follows:]

225

1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MR. WEINER OF NEW YORK AND

MS. LINDA T. SA ́ NCHEZ OF CALIFORNIA

At the end of the bill, add the following new section:

1 SECTION ll. EXPANSION OF GRANTS TO FIRST RESPOND2 ERS.

3 (a) IN GENERAL.—Section 1005 of the USA PA4 TRIOT ACT (28 U.S.C. 509 note) is amended in sub5 section (b)—

6 (1) by striking ‘‘and’’ at the end of paragraph

7 (4);

8 (2) by striking the period at the end of para9 graph (5) and inserting a semicolon; and

10 (3) by adding at the end the following new

11 paragraphs:

12 ‘‘(6) rehire law enforcement officers who have

13 been laid off as a result of State and local budget

14 reductions for deployment in community-oriented po15 licing;

16 ‘‘(7) hire and train new, additional career law

17 enforcement officers for deployment in community18 oriented policing across the Nation;


3199Q.AAB
226

2

H.L.C.

1 ‘‘(8) procure equipment, technology, or support

2 systems, or pay overtime, to increase the number of

3 officers deployed in community-oriented policing;

4 ‘‘(9) improve security at schools and on school

5 grounds in the jurisdiction of the grantee through—

6 ‘‘(A) placement and use of metal detectors,

7 locks, lighting, and other deterrent measures;

8 ‘‘(B) security assessments;

9 ‘‘(C) security training of personnel and

10 students;

11 ‘‘(D) coordination with local law enforce12 ment; and

13 ‘‘(E) any other measure that, in the deter14 mination of the Attorney General, may provide

15 a significant improvement in security; and

16 ‘‘(10) develop new technologies, including inter17 operable communications technologies, modernized

18 criminal record technology, and forensic technology,

19 to assist State and local law enforcement agencies in

20 reorienting the emphasis of their activities from re21 acting to crime to preventing crime and to train law

22 enforcement officers to use such technologies.’’.

23 (b) SPECIFIC PROVISIONS.—Such section is further

24 amended—


3199Q.AAC
227

3

H.L.C.

1 (1) by redesignating subsections (d) through (f)

2 as subsections (g) through (i), respectively;

3 (2) by inserting after subsection (c) the fol4 lowing new subsections:

5 ‘‘(d) MATCHING FUNDS FOR SCHOOL SECURITY.—

6 In the case of a grant for the purposes described in sub7 section (b)(9)—

8 ‘‘(1) the portion of the costs of a program pro9 vided by that grant may not exceed 50 percent;

10 ‘‘(2) any funds appropriated by Congress for

11 the activities of any agency of an Indian tribal gov12 ernment or the Bureau of Indian Affairs performing

13 law enforcement functions on any Indian lands may

14 be used to provide the non-Federal share of a

15 matching requirement funded under this subsection;

16 and

17 ‘‘(3) the Attorney General may provide, in the

18 guidelines implementing this section, for the require19 ment of paragraph (1) to be waived or altered in the

20 case of a recipient with a financial need for such a

21 waiver or alteration.

22 ‘‘(e) RETENTION GRANTS.—The Attorney General

23 may use no more than 50 percent of the funds under this

24 section to award grants targeted specifically for retention

25 of police officers to grantees in good standing, with prefVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00231 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1

3199Q.AAD
228

4

H.L.C.

1 erence to those that demonstrate financial hardship or se2 vere budget constraint that impacts the entire local budget

3 and may result in the termination of employment for po4 lice officers funded under this section.

5 ‘‘(f) GRANTS FOR OFFICERS WITH INTELLIGENCE,

6 ANTI-TERROR, OR HOMELAND SECURITY DUTIES.—The

7 Attorney General may use funds under this section to

8 award grants to pay for officers hired to perform intel9 ligence, anti-terror, or homeland security duties exclu10 sively.’’.

11 (c) AUTHORIZATION OF APPROPRIATIONS.—Such

12 section is further amended in subsection (i) (as redesig13 nated by subsection (b) of this section)—

14 (1) by striking ‘‘$25,000,000’’ and all that fol15 lows through the period at the end and inserting ‘‘—

16 ’’; and

17 (2) by adding at the end the following:

18 ‘‘(1) $25,000,000 for each of fiscal years 2003

19 through 2005;

20 ‘‘(2) $1,032,624,000 for fiscal year 2006;

21 ‘‘(3) $1,052,176,000 for fiscal year 2007; and

22 ‘‘(4) $1,072,119,000 for fiscal year 2008.’’.


3199Q.AAE
229

Mr. WEINER. Mr. Chairman, the amendment that the gentlelady 

from California and I offer is one that frankly has found favor in 

this Committee on two other occasions. When we considered the 9/

11 Commission recommendation, the legislation to reauthorize the 

COPS Program and insert it in that vehicle, it was passed by this 

Committee, as it was in the DOJ reauthorization bill. 

In both cases, the leadership of this House and the Rules Committee stripped that language from the bill. This is another thrust 

at the same attempt. This picks up on the grant making that was 

in the PATRIOT Act that we’re reauthorizing today. It would provide $1 billion for the next 3 years; 13,000 new cops on the beat 

nationally each year. And it would do what Secretary Ridge argued 

we needed to do, which was to start our homeland security fight 

in our home towns. 

I don’t need to argue before this Committee the value of the 

COPS Program. Every member in this body that are in districts 

has been helped by the COPS Program. It provides Federal assistance to provide law enforcement that are now spending so much of 

their time doing anti-terrorism work, and in the interest of time, 

I yield to the gentlelady from California, Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. I’d like to thank the gentleman from New York for 

yielding some time and for letting me join him in offering this very 

important amendment. 

Just very briefly, the Weiner-Sa ́nchez Amendment achieves two 

very important homeland security objectives. 

First, it provides more funding and authorization for law enforcement agents, including those in the community oriented policing 

programs. And second, it helps increase the security measures and 

new technologies that will help prevent us from future terrorist attacks. 

As my colleague from New York has said, it’s found favor with 

this Committee and I would urge my colleagues on both sides of 

the aisle to support this amendment. 

And I yield back to the gentleman from New York. 

Mr. WEINER. And before I yield back, I just want to commend the 

Chairman, who has been open minded in support of the idea of getting COPS reauthorized, and we’ve tried to do this on a couple of 

occasions. This is this year’s moving vehicle and the most appropriate place to insert this language, and with that, I yield back my 

time. 

Chairman SENSENBRENNER. Does the gentleman from Texas insist on his point of order? 

Mr. SMITH. Mr. Chairman, I do insist on my point of order. 

Chairman SENSENBRENNER. The gentleman will state his point of 

order. 

Mr. SMITH. Mr. Chairman, I want to make the point of order that 

this amendment is not germane. Under House Rule 16, we are prohibited from considering any amendment that is—has a subject different from that under consideration. 

And in this case, there is no provision, title, section in the PATRIOT Act that deals with the COPS Program and for that reason 

and because it doesn’t fall under any other primary purpose of the 

PATRIOT Act, this amendment is non-germane, and I would insist 

on that point of order. 

Chairman SENSENBRENNER. Does the gentleman——

230

Mr. WEINER. Mr. Chairman, may I be heard on the point of 

order? 

Chairman SENSENBRENNER. The gentleman from New York. 

Mr. WEINER. I would refer the gentleman to the section of the 

PATRIOT Act that he just said is not in the bill that refers to, and 

I quote: ‘‘first responder assistance.’’ These are grant authorizations, terrorism prevention grants. In fact, there is a section in the 

PATRIOT Act that refers to this. 

As far as there not being in the title, well, we are reauthorizing 

the PATRIOT Act as indicated on the notice from the Committee, 

as indicated on the bill from the Committee, as indicated on the 

discussion draft from the Committee, as indicated from the memo 

to members from the staff and the Chairman of the Committee. So 

clearly, it’s within the purview of the PATRIOT Act as it has been 

in the past. 

Mr. SMITH. Would the gentleman from New York yield briefly? 

Mr. WEINER. Certainly. 

Mr. SMITH. I just want to make the point that the provision to 

which the gentleman refers is actually not being reauthorized 

today, nor is it under the purview of the primary purpose of the 

bill being reauthorized today. And for that reason, I still think it’s 

non-germane. 

Mr. WEINER. Well, if it——

Chairman SENSENBRENNER. The chair is prepared to rule. Now, 

for the reasons articulated by the gentleman from Texas, Mr. 

Smith, that the amendment proposes a different subject than that 

contained in the bill, the chair sustains the point of order. 

Are there further amendments? The gentlewoman from California, Ms. Lofgren? 

Ms. LOFGREN. I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

Ms. LOFGREN. It’s 34. 

The CLERK. Amendment to H.R. 3199, offered by Ms. Lofgren of 

California. 

At the end of the bill, add the following: Section, Enhanced Review of Detention——

Ms. LOFGREN. I’d ask unanimous consent that the amendment be 

considered as read. 

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. And the gentlewoman from California is recognized for 5 minutes. 

[The amendment of Ms. Lofgren follows:] 

231

1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MS. ZOE LOFGREN OF CALIFORNIA

At the end of the bill, add the following:

1 SEC. ll. ENHANCED REVIEW OF DETENTIONS.

2 Section 1001 of the USA PATRIOT ACT is amended

3 by—

4 (1) inserting ‘‘(A)’’ after ‘‘(1)’’; and

5 (2) inserting after ‘‘Department of Justice;’’

6 the following: ‘‘and (B) review detentions of persons

7 under section 3144 of title 18, United States Code,

8 including their length, conditions of access to coun9 sel, frequency of access to counsel, offense at issue,

10 and frequency of appearance before a grand jury;’’.


3199R.AAB
232

Ms. LOFGREN. Mr. Chairman, the material witness law, enacted 

in 1984, allows the government to arrest persons who are needed 

as witnesses in ongoing criminal investigations, but who might not 

comply with the conventional subpoena. 

In essence, this law was designed to get evidence from frightened 

or recalcitrant witnesses. It was not designed as a counter-terrorism tool to allow the government to detain anyone it had suspicions about. 

Yet, there are real questions about how the Department of Justice is utilizing this statute. Specifically, it appears that the Department may be bending the material witness statute into a tool 

to detain suspects without charge or due process, while it investigates them for possible links to terrorism. As the Chairman may 

recall, during our hearings, I asked the Department of Justice for 

information on this very subject. And to date that information has 

not been forthcoming. 

In June 2005, a report by Human Rights Watch found that 70 

suspects held as material witnesses since 9/11, of the 70, almost 

half were actually never brought before a grand jury or a court to 

testify. The report also found that many were never told the reason 

for their arrest or allowed access to a lawyer. 

Of the 70 suspects, only 28 were ever charged with a crime, most 

of which were unrelated to terrorism. 

This report also states that about one-third were held for at least 

2 months and that one material witness was imprisoned for a year. 

They claim or the report claims that many of these individuals 

were held in solitary confinement, subjected to harsh and degrading high security conditions usually reserved for prisoners accused 

or convicted of the most dangerous crimes. The report also says detainees described abuse. 

Now I don’t want to take the word of a outside group for it. I 

would like to look at what the Department itself has done and we 

are advised that the Department has apparently apologized to 13 

people for using the material witness statute to detain them. 

Among them, Brandon Mayfield, a lawyer in Seattle, he was—

the FBI detained Mr. Mayfield as a material witness but in reality, 

he—they did not believe that Mr. Mayfield was a witness to anything. They believed he had participated in the Madrid terrorists 

bombings because they mistakenly linked his fingerprint to evidence found at the bombing site. Although Mr. Mayfield hadn’t 

traveled abroad for more than 10 years and although the Spanish 

authorities doubted the print matched and the FBI picked up 

Mayfield as a material witness and held him for 2 weeks without 

bringing any formal charges against him, they ultimately released 

him and apologized. 

A couple of months ago, the Chairman himself forwarded a letter 

to the Attorney General that reiterated the questions that I asked 

at the hearing, and to date I don’t believe we have got the statistics 

that we requested. This amendment——

Chairman SENSENBRENNER. Will the gentlewoman yield? 

Ms. LOFGREN. I certainly will. I hope my statement is incorrect; 

that you’re about to tell me so. 

Chairman SENSENBRENNER. No. You’ve convinced me this is a 

good amendment, and I’m willing to accept it. 

233

Ms. LOFGREN. Thank you, Mr. Chairman. This amendment only 

asks for reports, and I appreciate your willingness to accept it. 

Chairman SENSENBRENNER. The gentlewoman yield back? 

Ms. LOFGREN. I do . 

Chairman SENSENBRENNER. The question is on agreeing to the 

amendment offered by the gentlewoman from California, Ms. 

Lofgren. Those in favor will say aye. Opposed, no? The ayes appear 

to have it. The ayes have it. The amendment is agreed to. rollcall 

is requested. 

Those in favor of the Lofgren Amendment will, as your names 

are called answer aye; those opposed, no, and the clerk will call the 

roll. 

The CLERK. Mr. Hyde? 

Mr. HYDE. Aye. 

The CLERK. Mr. Hyde, aye. Mr. Coble? 

[No response.] 

The CLERK. Mr. Smith? 

[No response.] 

The CLERK. Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

Mr. GALLEGLY. Mr. Chairman, how am I recorded? 

The CLERK. Mr. Chairman, Mr. Gallegly is recorded as a no. 

Mr. GALLEGLY. I’m sorry, aye. 

The CLERK. Mr. Gallegly, aye. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, aye. Mr. Lofgren? Lungren? 

[Laughter.] 

Mr. LUNGREN. Aye. 

The CLERK. Mr. Lungren, aye. Mr. Jenkins? 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins, aye. Mr. Cannon? 

Mr. CANNON Aye. 

The CLERK. Mr. Cannon, aye. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

Mr. INGLIS. Aye. 

The CLERK. Mr. Inglis, aye. Mr. Hostettler? 

Mr. HOSTETTLER. Aye. 

The CLERK. Mr. Hostettler, aye. Mr. Green? 

Mr. GREEN. Aye. 

The CLERK. Mr. Green, aye. Mr. Keller? 

Mr. KELLER. Aye. 

The CLERK. Mr. Keller, aye. Mr. Issa? 

Mr. ISSA. Aye. 

The CLERK. Mr. Issa, aye. Mr. Flake? 

Mr. FLAKE. Aye. 

The CLERK. Mr. Flake, aye. Mr. Pence? 

Mr. PENCE. Aye. 

The CLERK. Mr. Pence, aye. Mr. Forbes? 

Mr. FORBES. Aye. 

234

The CLERK. Mr. Forbes, aye. Mr. King? 

Mr. KING. Aye. 

The CLERK. Mr. King, aye. Mr. Feeney? 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney, aye. Mr. Franks? 

[No response.] 

The CLERK. Mr. Gohmert? 

Mr. GOHMERT. Aye. 

The CLERK. Mr. Gohmert, aye. Mr. Conyers? 

[No response.] 

The CLERK. Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

[No response.] 

The CLERK. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

[No response.] 

The CLERK. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

Mr. DELAHUNT Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler? 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. Mr. Weiner? 

[No response.] 

The CLERK. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

[No response.] 

The CLERK. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman, aye. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their vote? The gentleman from Maryland, Mr. Van Hollen? 

Mr. VAN HOLLEN. Thank you, Mr. Chairman. Aye. 

The CLERK. Mr. Van Hollen, aye. 

Chairman SENSENBRENNER. The gentlewoman from California, 

Ms. Waters? 

Ms. WATERS. Ms. Waters, aye. 

The CLERK. Ms. Waters, aye. 

Chairman SENSENBRENNER. The gentleman from Michigan, Mr. 

Conyers. 

235

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. 

Chairman SENSENBRENNER. The gentleman from North Carolina, 

Mr. Coble. 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble, aye. 

Chairman SENSENBRENNER. The gentleman from Texas, Mr. 

Smith. 

Mr. SMITH. Mr. Chairman, I vote aye. 

The CLERK. Mr. Smith, aye. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote? The gentleman from Virginia, Mr. Goodlatte? 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte, aye. 

Chairman SENSENBRENNER. The gentleman from Massachusetts, 

Mr. Meehan? 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote? If not, the clerk will call the report. 

The CLERK. Mr. Chairman, there are 34 ayes and 0 noes. 

Chairman SENSENBRENNER. And the amendment is agreed to. 

Are there further amendments? 

Mr. SCHIFF. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Schiff. 

Mr. SCHIFF. I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

Mr. SCHIFF. And as an aside, I think rather than a Scott-Lungren amendment, we need a Lofgren-Lungren amendment. This, 

however, is not that. 

Chairman SENSENBRENNER. Okay. The clerk will report the correct amendment. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Schiff of 

California. At the end of the bill add the following new section: Sec. 

lll. Electronic Surveillance Targets. Section 105(c) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)) is 

amended—(1) in paragraph (1)(A)——

Mr. SCHIFF. Mr. Chairman, I request consent to deem the 

amendment as read. 

Chairman SENSENBRENNER. Without objection, so ordered. 

[The amendment of Mr. Schiff follows:] 

236

1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MR. SCHIFF OF CALIFORNIA

At the end of the bill add the following new section:

1 SEC. ll. ELECTRONIC SURVEILLANCE TARGETS.

2 Section 105(c) of the Foreign Intelligence Surveil3 lance Act of 1978 (50 U.S.C. 1805(c)) is amended—

4 (1) in paragraph (1)(A), by inserting ‘‘specific’’

5 after ‘‘description of the’’; and

6 (2) in paragraph (2)—

7 (A) in subparagraph (C), by striking

8 ‘‘and’’ at the end;

9 (B) in subparagraph (D), by striking the

10 period at the end and inserting ‘‘; and’’; and

11 (C) by adding at the end the following new

12 subparagraph:

13 ‘‘(E) in the case where the target is an in14 dividual, that the order shall apply only to the

15 particular individual identified or described

16 under subsection (c)(1)(A).’’.


3199S.AAB
237

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCHIFF. Mr. Chairman and members, some have claimed 

that the PATRIOT Act authorizes so-called John Doe roving wiretaps, that is, orders that identify neither the specific target nor the 

specific location of the interception. My colleague, Mr. Issa, offered 

a good amendment, which was agreed to by the Committee, to 

make sure that there was some level of ascertainment of the location of the wiretap. My amendment goes to the individuals that are 

the targets of a roving wiretap. 

The Department of Justice maintains that even if the Government is not sure of the actual identify of the target of a wiretap, 

FISA, nonetheless, requires the Government to provide a description of the target prior to obtaining the order. And it may be in 

many cases—and I think the Department is making a very legitimate argument—that although the identity is not known in the 

sense of knowing the name of the specific individual, they have a 

specific individual in mind that they are requesting the wiretap for. 

I think that’s appropriate. That’s an appropriate use of a John Doe 

wiretap. 

The concern that has been raised is that if the description is general of the individual and the individual who’s the target changes 

when more information is learned, it was in the beginning thought 

to be one person, later thought to be another person, it should not 

be sufficient to use the same application for a different individual 

target. And Attorney General Ashcroft explained in a letter to 

Chairman Hatch that the Government cannot change the target of 

its surveillance under a wiretap order. It must, instead, apply to 

the FISA court for a new order for the new target. That is, I think, 

the policy of the Justice Department. This would make it a legal 

requirement, and I think it does nothing more than ratify what Attorney General Ashcroft said is the practice of the Department, and 

that is, in the case of a roving wiretap where the identity is not 

known by name but the person has been identified, if subsequently 

it’s learned that the real target is someone else, you should have 

to go back to the court identifying the other individual. 

So this amendment would give some greater protection. It would 

make statutory what the Attorney General has said is Department 

of Justice policy. And I think in combination with what Mr. Issa 

offered, which ensured the protections were there for the targets 

that were not individuals, that were locations, this goes to individuals and says, yes, it’s all right if you don’t know the name, as long 

as you have a particular person in mind; if the particular person 

changes, you need to go back to get an application for the subsequent individual. 

I’d be happy to entertain any questions, but I would urge your 

support of the amendment. 

Chairman SENSENBRENNER. Does the gentleman yield back? 

Mr. SCHIFF. Yes, Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Issa. 

Mr. ISSA. Mr. Chairman, I reluctantly rise in opposition, and I 

say that because I only—you know, this is somewhat new to me, 

your question. But looking at it, I believe we mostly have taken 

care of this with the 10-day return if there’s a change in the comVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00241 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1
238

munication that’s being tracked. And what I’d like to suggest, because we do have an ongoing work toward a floor amendment on 

206, is that I’d be happy to work with the gentleman on making 

sure that we’re both comfortable at the floor that this would be covered under the authority of the judge. And I think the gentleman 

from California would agree with me that what we’re trying to do 

is make sure that there’s a loop back when there’s a change to the 

judge, because the truth is that we’re not—we don’t want to be 

handling individual cases, but we do want that branch of Government that normally handles these to handle them. But I——

Mr. SCHIFF. Would the gentleman yield? 

Mr. ISSA. Yes, I would. 

Mr. SCHIFF. I appreciate that, that the majority often gets no 

more notice of amendments than the minority gets of the majority 

amendments. And, you know, we looked at your amendment in 

good faith and supported it. My amendment is really, I think, the 

counterpart that deals with the individuals, whereas yours dealt 

with the locations. It does nothing more that I can see than codify 

what the Attorney General, the last Attorney General has said is 

the Department policy; that if it becomes known during the investigation that the tap requested on a specific individual turns out 

not to be the right one, that they can’t simply apply that wiretap 

to someone else because they don’t have a name attached to it. 

They have to go back to the court. 

So this codifies what I understand is the Attorney General’s policy, and if—you know, I’d be happy to work on language later if you 

find some question about that, but——

Mr. ISSA. Reclaiming my time, I do expect that we should continue having this discussion through the final passage of the bill. 

But what I want to point out is that you can’t go to a judge with 

a description of a white male and that is not sufficient, that there 

is, in fact, already protections to the court that you have to have 

described the individual with a considerable—a lot more detail 

than that. And I believe that to be true, and so I believe this is 

unnecessary——

Mr. SCHIFF. May I——

Mr. ISSA.—but I would like to make sure that we both understand——

Mr. SCHIFF. May I give the gentleman a specific example of what 

I’m talking about? 

Mr. ISSA. Certainly. 

Mr. SCHIFF. Let’s say that the target under the FISA application 

says an Arab male between the ages of 22 and 27, living at X address. It is later learned that the actual target is his roommate 

who also meets that description. The concern has been raised is 

that you can give a sufficiently general application and then apply 

it to someone else. The Attorney General has said, no, we don’t operate that way; if we find out it’s the roommate and not the one 

that we were seeking the warrant on, we’d go back to the court. 

So this, I think, codifies that practice of the Department and 

gives a level of comfort and security to the American people to 

know that with this greater authority we gave with roving wiretaps 

that there is a limit to it, and that if we have identified the wrong 

party, when we identify the right party we go back for the application. 

239

Mr. ISSA. Reclaiming my time, I again reiterate that my present 

understanding and the reason that I don’t support this amendment 

at this time but do want to continue working with the gentleman 

is that I believe that the—that we are already close enough as a 

practical matter because a judge does have to say that’s good 

enough, that’s not good enough a description. But I do expect to be 

looking at 206 between now and the floor, and I absolutely promise 

the gentleman that I will include in our amendment if at that time 

we feel that we’ve gleaned something new. But as of right now, I 

don’t believe your description is accurate. I believe—it may be that 

they would come and say it’s one of these two individuals and these 

two individuals cohabitate and, therefore, we’re going after them. 

But it is not—the judge’s authority is already sufficient even if the 

Justice Department were to be less specific in their policy and, 

therefore, I believe this amendment is unnecessary. And I yield 

back. 

Chairman SENSENBRENNER. The question is on——

Mr. DELAHUNT. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Massachusetts, 

Mr. Delahunt. 

Mr. DELAHUNT. I just have some questions, and I’ll yield to the 

gentleman from California, the proponent of the amendment. But 

maybe he could explain to members of the Committee, in a John 

Doe warrant what is the current practice when there is—there 

emerges sufficient information to identify by name the individual? 

What occurs then and does your amendment accommodate that 

new information? 

Mr. SCHIFF. Will the gentleman yield? 

Mr. DELAHUNT. I yield. 

Mr. SCHIFF. I thank the gentleman for yielding. 

Yes, the amendment does accommodate that situation. What 

Senator Hatch was concerned about, what he raised with the Attorney General was we don’t want to have a situation where we have 

a roving wiretap not specific to any individual that can be moved 

from individual to individual. That’s not the purpose of a roving 

wiretap. The purpose of a roving wiretap is when you have a suspect and they use different phone facilities, you don’t want to have 

to go back to court for a different application every time they 

change phones. 

It was not designed to say when we think it’s one person but it 

turns out to be another person, we want the wiretap to follow whoever the latest suspect is. That was never the purpose of the roving 

wiretap. And the Attorney General told Senator Hatch that’s not 

what we use it for, that’s not how we operate. But, nonetheless, 

there is a concern out there among our constituents that there isn’t 

a meaningful statutory limitation on when a roving wiretap can 

rove, if it can rove from person to person. 

Now, I’m not hearing anyone on the other side of the aisle saying 

that this amendment is any different from the policy of the Justice 

Department. And if this is consistent, as I think it is, with the Attorney General’s letter, there shouldn’t be any opposition to this. 

And I appreciate the gentleman’s offer, but I see no more objection 

to this amendment than we had to the gentleman’s amendment, 

and I hope that my colleagues on the other side of the aisle will 

make the Justice Department practice, which is a solid one, the 

240

law of the land. And I would hope also that my colleagues on the 

other side of the aisle wouldn’t be advocating that we deviate or 

depart from the Justice Department policy and somehow adopt a 

broader practice that says when we’ve gone to court with a specific 

person in mind, even though we didn’t know their name but we 

sufficiently identified them, and we find out it’s somebody else, we 

shouldn’t have to go back to court. I don’t think that would be good 

policy. This amendment gives the country the confidence to know 

there is a limit, and it’s a limit consistent with what the Attorney 

General has said. 

Mr. ISSA. Would the gentleman from Massachusetts further 

yield? 

Mr. DELAHUNT. I yield to the gentleman. 

Mr. ISSA. Thank you. And I truly respect the gentleman’s decision that he may feel that this isn’t covered. I might suggest that, 

in fact, if you—if you played fast and loose, which the Justice Department doesn’t as a matter of policy, you would also create a defect in the warrant. There is no question that the law does not 

allow you to specify somebody and then simply move it from people 

to people who might loosely fit that description. That would be a 

defect in the existing law that would, in fact, make it a defect in 

the warrant. 

Mr. SCHIFF. Would the gentleman from——

Mr. DELAHUNT. Reclaiming my time, I yield to——

Mr. SCHIFF. I agree with the gentleman, but if that’s the case, 

then we are clearly codifying existing practice and existing law, so 

there should be no objection. If you can’t move from person to person, then this provision that says you can’t move from person to 

person should be completely unobjectionable. And if it gives the 

American people greater confidence that there are some limits, 

then there’s no reason not to provide that confidence. And I think 

we should. That’s why we’re here. And the gentleman’s amendment, frankly, the same argument could have been made against 

that, that, in fact, this is the good practice of the Justice Department, it’s already required by the court so we don’t need to do what 

the gentleman did. But the gentleman offered it because we ought 

to make this very clear to the American people what the limits are. 

It’s the same purpose behind my amendment, and I thank the gentleman for yielding. 

Mr. DELAHUNT. Reclaiming my time, I would encourage my colleagues to support the amendment. All I’ve heard, to be perfectly 

candid, is the fact that it’s unnecessary. I would suggest it could 

be critical. Right now it’s a matter of Justice Department policy. 

The law needs clarity on this, and I think this is a positive amendment. And I would hope that the gentleman from California would 

support the amendment, and if there are differences and clarification is needed, to do that from Committee to when the floor is managed, and I yield back. 

Chairman SENSENBRENNER. The gentleman from Texas, Mr. 

Gohmert. 

Mr. GOHMERT. Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. GOHMERT. I have more of a problem than just redundancy 

or duplication. With regard to subsection (E), where it says ‘‘in the 

241

case where the target is an individual, that the order shall only 

apply to the particular individual identified or described under subsection (c)(1)(A),’’ the problem there is, it strikes me, if I’m on the 

court of appeals, as I once was, and I’m reviewing something that 

comes in, if there is a recording of someone other than the target 

who is specified—and, let’s face it, conversations are normally at 

least two-way, two-party situations. So you got someone who is not 

the target individual talking to somebody who is. They’re talking 

about a crime. Under this, the way I read it, I think you only get 

to record half of the conversation. And if it violates this provision, 

if this were enacted into law, then some court’s probably going to 

throw out half the conversation and keep it from making sense because it violates this provision. 

So I see it creating a lot of problems for prosecution by complicating the matter. The way it stands now, they can record the 

whole conversation. They can use it in litigation, if necessary, in 

prosecution. And I hate to make—to tie the prosecutor’s hands and 

keep him from recording and following up on whoever is involved 

in the conversation. 

I yield to the gentleman from California. 

Mr. ISSA. I thank the gentleman for yielding. 

I might also, in speaking directly to the example the gentleman 

from California gave for why you thought you should have this, I 

might suggest that since—the reason for a roving wiretap being applied to a John Doe is that normally the John Doe is deliberately 

concealing their identity. We’re looking for, you know, Mohammed 

XYZ who chose to have an alias. And our best belief is that we 

are—we are going after this person at this place. That may, in fact, 

change, but the John Doe we’re going after never changes. 

So, in your example, where we think that one of two people sitting in a residence is the John Doe we want, and it turns out to 

be the other John Doe, your—you would say you have to go back 

again or you have a defect because you got the wrong John Doe between two of them. In fact——

Mr. GOHMERT. Would the gentleman yield? 

Mr. ISSA. Just 1 second. Let me finish the thought. In fact, as 

it is now and with the existing policy of the Justice Department, 

they are still going after the description of the John Doe that they 

believe to be the terrorist, and, in fact, that’s where you would sort 

through the two at one location or ten different cell phones as they 

keep dropping them to find the real alias. 

We are dealing, in the case of these John Does, normally with 

somebody who is trying to disguise who they are. And I yield back. 

The gentleman from Texas can——

Mr. GOHMERT. Thank you. Reclaiming my time, Mr. Chairman, 

I yield back. 

Chairman SENSENBRENNER. The question is on the amendment 

offered by the gentleman——

Mr. WEXLER. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Florida, Mr. 

Wexler. 

Mr. WEXLER. Thank you, Mr. Chairman. And I’d defer to Mr. 

Schiff. 

Mr. SCHIFF. I thank the gentleman for yielding. 

242

Very briefly, Mr. Chairman, in response to the two points made 

by my colleague from Texas and my colleague from California, 

again, either my colleagues are arguing that the Justice Department should not maintain the policy of the Attorney General as expressed by Attorney General Ashcroft that the Attorney General 

has restricted the DOJ from being able to shift from one subject of 

a warrant to a completely different subject without having to go 

back to the court, I think that would be a tremendous misstep. And 

to the degree that you argue against this amendment, you argue 

against the policy of the Justice Department. 

Second, the argument that you make that, well, somehow this 

will exclude half the conversations, that argument could be made 

with equal applicability to Mr. Issa’s earlier amendment regarding 

the specificity of location. Well, what if the location is broader than 

described? Does that mean you can only listen to half the conversation? Frankly, I think it’s a strained interpretation of both amendments, and I think a fair reading of this amendment is precisely 

what it appears to be, that where the target is an individual, the 

order shall apply to that individual. And that is what the Justice 

Department has said they are doing. That is what they say they 

must do. And we’re making it clear in this amendment. But if my 

colleagues choose to vote against the policy of the Justice Department as reflected in this amendment, then that seems to be the position they’re in. But I would hope that out of the same kind of bipartisan spirit that adopted Mr. Issa’s amendment we would adopt 

this amendment as well. And I would hope we would not all fall 

in love with our own language so much that we can’t find areas for 

improvement. 

And I’d yield back, Mr. Chairman. 

Chairman SENSENBRENNER. Does the gentleman from Florida 

yield back? 

Mr. WEXLER. Yes. 

Chairman SENSENBRENNER. The question is on the amendment 

offered by the gentleman from California, Mr. Schiff. Those in favor 

will say aye? Opposed, no? 

The noes appear to have it——

Mr. SCHIFF. Mr. Chairman, I request a recorded vote. 

Chairman SENSENBRENNER. A recorded vote is ordered. Those in 

favor of the Schiff amendment will as your names are called answer aye, those opposed no, and the clerk will call the roll. 

The CLERK. Mr. Hyde? 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

243

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

[No response.] 

The CLERK. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. Mr. Boucher? 

Mr. BOUCHER. Aye. 

The CLERK. Mr. Boucher, aye. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. Mr. Meehan? 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. Mr. Delahunt? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler? 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. Mr. Weiner? 

[No response.] 

244

The CLERK. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their vote? The gentleman from Virginia, Mr. Goodlatte. 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. 

Chairman SENSENBRENNER. The gentleman from Utah, Mr. Cannon. 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 15 ayes and 22 noes. 

Chairman SENSENBRENNER. The amendment is not agreed to. 

Are there further amendments? The gentleman from New York, 

Mr. Nadler. 

Mr. NADLER. Thank you, Mr. Chairman. I have an amendment 

at the desk. It’s offered by myself and Ms. Jackson Lee. That’s how 

you can identify it. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Nadler and 

Ms. Jackson Lee. At the appropriate place in the bill, insert the following: Sec. lll. Limitation on Roving Wiretaps under Foreign 

Intelligence Surveillance Act of 1978. Section 105(c) of the Foreign 

Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)) is amended—(1) in paragraph——

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. 

[The amendment of Mr. Nadler follows:]

245


3199T.eps
246

Chairman SENSENBRENNER. The gentleman from New York is 

recognized for 5 minutes. 

Mr. NADLER. Thank you. Mr. Speaker, this—Mr. Speaker. Mr. 

Chairman, this amendment, as the last one, deals with Section 

206, the roving wiretaps. Now, in the PATRIOT Act we provided 

for roving wiretaps, that is, wiretaps that require that—you know, 

where you identify the person and the wiretap applies to any site 

that that person might use. And that makes sense. It catches up 

with technology so that if you get a wiretap for one cell phone and 

he switches cell phones or uses a pay phone, you can just keep—

you can follow him. You don’t need a new application. 

But then we did John Doe wiretaps where we say, okay, we know 

that someone is using a certain phone or a certain set of phones 

in a certain neighborhood that we have reason to believe that 

someone is for no good purposes but we don’t know this fellow’s 

name, so instead of getting a wiretap that follows a person, we get 

a wiretap a—wiretaps at certain places, certain phones, certain 

electronic facilities, without a name on it. And that’s also fine. 

The problem comes in when you combine those two and you have 

a John Doe roving wiretap, and, in effect, that gives the FBI almost 

limitless power to have a wiretap application that doesn’t name an 

individual and doesn’t name a place. So it’s a roving wiretap with 

no specification of an individual, which means you can surveill the 

entire—an entire neighborhood. That is too much power. I am not 

sure that it was ever contemplated that these two separate sections 

could be combined. 

What this amendment says, in effect, is you can have a roving 

wiretap without John—if you name the person. You can have a 

John Doe wiretap, but it can’t be roving. In other words, you can 

wiretap either the person, wherever you think he may be speaking, 

or the place, looking for someone whom you don’t know. But you 

can’t combine them and say we’re going to have an application for 

an unknown person in general places. That’s almost like the British Writs of Assistance we objected to in 1760. It’s a general writ. 

And American law cannot permit general writs. There’s nothing 

more—there’s nothing more offensive to the Fourth Amendment, 

and, in fact, the only reason that the justification for the constitutionality of the roving wiretap provision of the PATRIOT Act in 

Section 206 was that it required naming the particular—specificity 

of the particular person. But if you remove the specificity of the 

person and you have no specificity of the place, you have a general 

warrant. I don’t see how it’s constitutional. 

Now, there may be circumstances where you want a roving wiretap, and that’s fine. There may be circumstances where you want 

a John Doe wiretap. That’s fine. But this amendment says you can 

have one or the other, but you can’t combine them because then 

there’s no limitation whatsoever. 

Mr. CONYERS. Would the gentleman yield? 

Mr. NADLER. Yes, I’ll yield. 

Mr. CONYERS. What would happen if they do two separate ones, 

one for each instance? 

Mr. NADLER. Well, that——

Mr. CONYERS. Would it violate——

Mr. NADLER. Reclaiming my time, if you do it—but then you 

have to—if you’re doing two separate ones, in one you have to 

247

name a person, in the other you have to name a place, a specific—

or a set of things. And all this amendment says is you have to 

name that. It says—one or the other. It says in paragraph (A), if 

the identity is unknown, in other words, it’s a John Doe wiretap, 

you have to specify the facilities and places. If it says—if any of the 

facilities or places are unknown, in other words, it’s a roving wiretap, you have to identify the target. You can’t have an unknown 

target and an unknown place because then it’s just general. And 

I can’t imagine how we can allow general—general all-embracing 

wiretaps. 

So I urge the adoption of this amendment, and I yield back. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Issa. 

Mr. ISSA. Thank you, Mr. Chairman. And I do thank the gentleman from New York for looking at this, this complicated subject, 

and trying to come up with very worthy amendments. 

In this case, I have to oppose this, and I have to oppose it specifically for what we’re talking about, which is this—if we were to 

adopt Mr. Nadler and Ms. Jackson Lee’s amendment, what would 

happen is we would be able to follow a Member of Congress who’s 

using a disposable cellular phone, a new one every day, and we’d 

be able to deal with an al Qaeda operative who is clandestine as 

long as he stayed at the same phone. But we wouldn’t be able to 

deal with that—that hidden person that is operating that we only 

know some things about because they’re trying to remain anonymous if they went from phone to phone. Here——

Mr. NADLER. Would the gentleman yield? 

Mr. ISSA. Just a moment. Here and in Afghanistan and in Iraq, 

we are using the techniques of knowing something about the individual we’re looking for, and we know something about the one or 

two or three phones they may be using at a given time and changing. Specifically when we envisioned this legislation, we did envision the idea that you would not—you might know who the person 

was in principle but not by their correct name, which is all a John 

Doe warrant often is, and we clearly saw them as using modern 

technology to go from phone to phone. 

With that, I’d yield for the question. 

Mr. NADLER. Well, I think the gentleman—excuse me. I think 

the gentleman is a little incorrect. If you know the identity of the 

person, you know—it doesn’t have to be his name. But if you know 

that the person with some identifying characteristics is a suspected 

al Qaeda agent, and you don’t know where—you know, what facilities he’s using, you’d get that as a roving wiretap with the identifying characteristics. But you have to have some identifying characteristics. If you don’t have any identifying characteristics but you 

know where—where you think you know, then you—then you get 

a John Doe wiretap. 

Mr. ISSA. Reclaiming my time, I wish I could agree with you because that understanding needs to be gleaned. A John Doe is anytime you don’t actually know the guy’s correct name. And often you 

have doing—and from my civil days, doing business as, it’s still a 

John Doe. You don’t know for sure the correct legal name, and so 

you still use John Doe. 

The fact is John Doe is about not having an exact, but you can 

have a pretty darn good description. You can know the guy was in 

248

Morocco last week and then he was here and he was there, and you 

can do an awful lot of describing and still be a John Doe. 

So with all due respect to the gentleman from New York, the 

combination does exist. It exists every day in the pursuit of al 

Qaeda and other terrorist organizations in which you know a great 

deal, but you still don’t have an exact, correct, verifiable name, 

and, by the way, they’re using a new cell phone every day. 

With that, I’d yield back. 

Mr. BERMAN. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Berman. 

Mr. BERMAN. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. BERMAN. If the John Doe warrant—if this is—if the roving 

wiretap with the John Doe warrant is simply a way to get someone 

they have no—to give a blanket authorization for the FBI to 

surveill anyone at any place by having no description and no place, 

then I’m very supportive of the gentleman’s amendment. But I 

would like—I hear you say if the identity is unknown. What if it 

is a John Doe warrant because they don’t know the name, but they 

have very specific characteristics, enough to persuade a judge to 

issue a John Doe warrant, but they don’t know where he is? They 

have a clear sense of who they want, but they don’t know the person’s name. If that is called a John Doe warrant, why—why do we 

want to limit their ability to get a roving wiretap on this person 

whose identity they have many descriptions of, and let’s assume for 

a second they’re operating in good faith, why do we want to restrict 

their ability to surveill that person in part to get that person’s true 

identity and other information where they can—they can make the 

case that that person with those characteristics is an agent of a foreign power? That’s the one problem I have with the word ‘‘the identity is unknown.’’ Does the—are you saying if you have particular 

characteristics but don’t know the name, then your section doesn’t 

apply? 

Mr. NADLER. If the gentleman would yield? 

Mr. BERMAN. Sure. 

Mr. NADLER. My intention here is not the simple fact—and I 

hope Mr. Issa will listen, too. We refer to it colloquially as a John 

Doe amendment—as a John Doe wiretap. But what we’re talking 

about and what I intended—and I’m perfectly willing to entertain 

suggestions for making this clear—is what the gentleman was saying, some identifying characteristics. If you have enough to know 

who it is, you don’t know his name—his name is not the important 

thing, but there has to be some limitation on the power so that it 

isn’t a general writ. If you’re doing a roving wiretap and you know 

generally about the person you’re looking at and so you can describe it with some specificity, even without the name, then that 

would be okay. But that’s what I’m trying to do in this amendment. 

Mr. BERMAN. Reclaiming my time, in other words, if there’s a 

practice going on or that could go on under this statute, which 

would essentially allow law enforcement to pocket authorizations to 

surveill without—they could apply at any time afterwards to anybody they wanted to based on at that point thinking that person 

might—might be a terrorist, I share your concern and think we 

249

ought to correct that, but not clear for me from your amendment. 

I’ll yield to somebody who’s actually been in——

Mr. NADLER. Would the gentleman yield for a moment? Would 

the gentleman yield for a moment? Thank you. 

I am going to, without prejudice, withdraw this amendment now 

and come back to it later or tomorrow with better—with language 

that will go into that because——

Chairman SENSENBRENNER. The amendment is withdrawn. 

Are there further amendments? 

Mr. WATT. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from North Carolina, 

Mr. Watt. 

Mr. WATT. I have an amendment at the desk. It’s the Watt 

amendment, not the Watt-Waters amendment. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Watt. Insert at an appropriate place the following——

Mr. WATT. Mr. Chairman, I ask unanimous consent——

Chairman SENSENBRENNER. The clerk will continue to read until 

we can see the——

The CLERK. Sec.01. Warrants executed in districts other than 

where issued. Whenever a warrant may be executed in a district 

other than the district in which it was issued, a person against 

whom it may be executed may seek to quash that warrant in the 

district in which it is served, or, if the person is a corporation, in 

any district in the State wherein the corporation was incorporated. 

[The amendment of Mr. Watt follows:] 

250

1

H.L.C.

AMENDMENT TO 3199

OFFERED BY MR. WATT

Insert at an appropriate place the following:

1 SEC. 01. WARRANTS EXECUTED IN DISTRICTS OTHER THAN

2 WHERE ISSUED.

3 Whenever a warrant may be executed in a district

4 other than the district in which it was issued, a person

5 against whom it may be executed may seek to quash that

6 warrent in the district in which it is served, or, if the per7 son is a corporation, in any district in the State wherein

8 the corporation was incorporated.


3199U.AAB
251

Chairman SENSENBRENNER. The gentleman from North Carolina 

is recognized for 5 minutes. 

Mr. WATT. Thank you, Mr. Chairman. 

Mr. Chairman, I spent a lot of time in courts practicing law, 22 

years, and I always had this philosophy that the courts and our 

court system should—should try to be as accessible to the people 

who were being brought into contact with it as possible. 

Currently, Section 219 of the PATRIOT Act authorizes nationwide search warrants in terrorism-related investigations. Section 

220 allows a single court in a single district to issue a search warrant for electronic evidence that is valid nationally, essentially expanding Section 219 to standard criminal investigation. I’m not 

sure that this result was intended, but that’s certainly where we 

are at this point. 

Receiving an out-of-State search warrant under either section 

may impose an insurmountable burden on the recipient if he wishes to challenge the warrant. For example, Section 220 makes it 

more difficult for large communication service providers to seek 

modification of burdensome disclosure orders. Instead of being able 

to contest within their home Federal district, they must challenge 

in whatever district throughout the country the order originated. 

My amendment injects an element of fairness into the process for 

warrant recipients and their attorneys by allowing them to challenge a warrant issued under Sections 219 and 220 if an individual 

in the district where the warrant was served, and if a corporation 

in the district where it was incorporated. Again, I believe this 

amendment ensures openness and efficiency and more accessibility. 

The deck should not be stacked against those against whom the 

Government has some suspicion, and it certainly shouldn’t be 

stacked against some electronic provider against whom they have 

no suspicion, they’re just trying to get evidence. I think the Government should be bearing this burden. Here this amendment nearly 

makes it possible for innocent targets to challenge unfair or erroneous warrants in a venue that is convenient to them. It imposes 

no harm on the Government. It does not undermine its investigative capacity, and I ask my colleagues to support the amendment, 

and yield back——

Ms. LOFGREN. Could I ask a question before you yield back? 

Mr. WATT. Yes. I yield to the gentlelady. 

Ms. LOFGREN. I thank you. The rationale for the section in the 

Act meant a lot to me, frankly, because it relieved a burden on the 

courts in San Jose, California, that ended up issuing almost all of 

the warrants for—even though the case had absolutely nothing to 

do with anything anywhere near Santa Clara County. 

I do not object at all to what you’re attempting to do, but I do 

want to clarify that this is at the discretion of those seeking to 

quash, and would not preclude quashing in the court where the 

warrant was issued. This would just be an addition to that? 

Mr. WATT. Yes. 

Ms. LOFGREN. Then I think this is perfectly sensible, and I thank 

the gentleman for yielding. 

Mr. WATT. I yield back the balance of my time. 

Chairman SENSENBRENNER. Gentleman from Texas, Mr. Smith. 

Mr. SMITH. Mr. Chairman, I oppose the amendment. 

252

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SMITH. And, Mr. Chairman, let me say in opposing the 

amendment, I don’t oppose the gentleman from North Carolina’s 

goal, which I think is a worthy one, and what he hopes to accomplish with this amendment. However, my problem is, frankly, that 

I don’t——

Mr. WATT. Mr. Chairman, I’m having trouble hearing Mr. Smith. 

I’m sorry. 

Mr. SMITH. I’m sorry. Mr. Chairman, my problem is that I’m not 

sure what problem it is that this amendment seeks to address. It 

has long been the case that grand jury subpoenas are issued in the 

district of the investigation to gather relevant information, and 

must be challenged there. The process has worked for grand jury 

subpoenas for many years with no apparent problems that I’m 

aware of. I’m also not aware of any evidence that the warrants 

issued in the district of the investigation cause any significant 

problems for keepers of electronic records or has deterred them 

from challenging warrants. 

On the other hand, the benefits in efficiency and cost savings are 

obvious and have been substantial. 

Finally, this amendment would create dueling district courts, 

which in some cases would operate in even different circuits. If a 

search warrant for electronic surveillance is challenged, the legality 

of the warrant should be determined by a judge familiar with the 

individual investigations. 

In summary, Mr. Chairman, I’m not sure that we have any significant problems that need to be addressed by this amendment, 

and second of all, I think we ought to avoid the situation where you 

have really one district court almost becoming an appellate court 

for another district court, and I know the gentleman wouldn’t want 

to see that occur either. 

Mr. WATT. Will the gentleman yield? 

Mr. SMITH. And I’ll be happy to yield to the gentleman from 

North Carolina. 

Mr. WATT. I thank the gentleman for yielding. First of all, if he 

doesn’t think there is a problem, then he obviously didn’t hear 

what either I or Ms. Lofgren said. 

Mr. SMITH. If the gentleman would yield, I did hear what the 

gentlewoman from—reclaiming my time—what the gentlewoman 

from California said. but I was not persuaded that that was a problem of such significance that it overrode the advantages of having 

one district court not only issue——

Mr. WATT. Would my gentleman friend from Texas yield? 

Mr. SMITH. Yes, I’m sorry, please. 

Mr. WATT. I thank the gentleman for yielding again. Those are 

two separate issues, and the second one I understand more than 

I understand the first. Obviously, there is a problem because this 

is a remote—or the possibility of having to travel all the way across 

the country to deal with something. This is not a grand jury situation. I’m not trying to get people into dueling——

Mr. SMITH. District courts? 

Mr. WATT.—dueling district courts. I presume that judges looking at the same evidence are going to reach the same result, but, 

you know, right now we’re making this convenient for the GovernVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00256 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1
253

ment, but not convenient for the citizen, and the citizen in this case 

is not even the person that’s suspect of anything. In most cases it’s 

a corporation that happens to be a service provider. 

Mr. SMITH. Reclaiming my time, I’m not sure I share the gentleman’s confidence that district courts will not differ in their findings 

or differ in their conclusions, but in any case, I’ll be happy to yield 

for the gentleman from Texas, Mr. Gohmert——

Mr. GOHMERT. Thank you. 

Mr. SMITH.—the balance of my time. 

Mr. GOHMERT. I appreciate my gentleman friend from Texas 

hearing my voice way out here in the wilderness. 

Listen, I’ve dealt with this issue, and I’ll tell you what, when you 

have a violent criminal that you issue a warrant on, and you set 

a high bond like a million dollar bond—and I have had this happen—he’s picked up in some other jurisdiction. He comes in, he 

makes a contrite and lovely appearance before that trial judge, and 

that trial judge says, well, he seems like a nice enough guy. He 

sets a low bond, and a violent criminal gets away and does violence 

on other people. It is not a good situation. 

And from what I understand, this was originally argued at 

length in the original PATRIOT Act, and that’s why this wasn’t a 

part of it. In fact, this is the very kind of thing that will allow 

somebody to go to a judge that doesn’t know the history, doesn’t 

know what happened, and then issue a warrant in the middle of 

the night to go kidnap a child at gunpoint, all because he wasn’t 

privy to all the information the original trial judge had. 

I think this is troublesome. I have seen it create problems down 

the road simply because a well-meaning judge just doesn’t have all 

the facts. The original trial judge that issued the warrant does, or 

he wouldn’t have issued it, so I would urge everyone to vote against 

this amendment. 

Mr. SMITH. Mr. Chairman, I thank the former judge from Texas 

for his comments, and I’ll yield back. 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Scott. 

Mr. SCOTT. Mr. Chairman, I think the only thing more troublesome than the situations that have been alluded to would be what 

would happen if this amendment is not agreed to. In a grand jury 

you’re at least doing one crime and you’re looking for evidence of 

that crime, so there’s some natural limitation. In this you can 

have—if you get served in California on a warrant that is over 

broad and you have trouble complying with it, you got a choice, you 

can either comply with it at great hardship, or you can go to Virginia and argue about it. 

Now, you got to bring yourself and your lawyer and everybody 

else cross-country to argue the case. Why can’t you argue it right 

there somewhere in California? I would hope we would agree to 

this. Otherwise, you essentially have no right to contest a search 

warrant if you don’t adopt this amendment. 

Mr. DELAHUNT. Would the gentleman yield? 

Mr. SCOTT. I’ll yield. 

Mr. DELAHUNT. In response to my friend from the wilderness, I 

think he—and I read the amendment on its face, and it just simply 

refers to warrants executed in districts. But this is not an arrest 

warrant. What we’re speaking to here is an electronic search warVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00257 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1
254

rant, and I would ask the gentleman if that might somehow influence his concerns that he so eloquently expressed about that violent——

Mr. GOHMERT. Would the gentleman yield? 

Mr. DELAHUNT.—criminal down in Texas. 

Mr. GOHMERT. If the gentleman would yield? 

Mr. DELAHUNT. I yield. 

Mr. GOHMERT. I take it by your silence, yes. The same principles 

apply. The one that issued the warrants knows the facts and knows 

them well enough to have found probable cause to issue a warrant. 

Otherwise he’s the one or she is the one that found that it complied 

with the constitutional requirements, and that is the principal 

court of jurisdiction. And again, as I understand it, this was argued 

at length. The same kind of principle would apply, let the judge 

that has the principal jurisdiction rule on it. Thank you. 

Mr. DELAHUNT. Reclaiming my time, the problem you’ve got 

there——

Mr. GOHMERT. I yield back. 

Mr. DELAHUNT.—is that somebody’s going to be inconvenienced, 

and if you’ve got an overly broad warrant and cannot possibly comply, you’re in a fix because either you’ve got to pluck yourself and 

your lawyer and all your files and everything cross-country to 

schedule something that may get unscheduled and rescheduled. 

You’ve got to come back another time to argue it. If this isn’t adopted, you essentially have no effective right to contest a search warrant that may be overly broad, may bankrupt your company to try 

to comply with it. If you can’t get it amended, you can’t get it fixed, 

so that maybe you can provide most of the information, they’d be 

satisfied with that, you just got to go bankrupt or something. I 

yield to the——

Mr. ISSA. I thank the gentleman. And briefly, I’d like to say that 

although this may be well-intentioned, that there is a flaw even in 

the amendment, and that is that under the current law, for example, if you do business on the Internet, we don’t have to go to your 

home jurisdiction. In fact, if you do business in the Internet and 

there’s a portal that end up in my district, I can file in my district. 

So when you start saying it would be overly burdensome, the 

best example is in fact when we’re executing a search warrant on 

Internet material, we should not have to go to San Jose because 

the truth is, it’s probably a Washington or an Alabama or whatever 

investigation. So this doesn’t fix the problem that it says it fixes 

because we do often have corporations who in fact do not have the 

right to go to their home jurisdiction and say, ‘‘I’m going to answer 

it here,’’ because they’re doing business in Timbuktu, and as a result, they get served in Timbuktu. 

So I believe that this amendment is so overly broad that even if 

we agreed with the principles—and I think Chairman Smith has 

said why the entire amendment is flawed—I also think that we 

need to look——

Ms. LOFGREN. Would the gentleman yield? 

Mr. DELAHUNT. Would the gentleman yield? 

Mr. WATT. Reclaiming my time, and I yield to the gentlelady 

from California. 

Ms. LOFGREN. This was discussed at some length. I mean not tremendous length when we enacted the PATRIOT Act, and it is for 

255

electronic evidence only. And really, the rationale behind—to allow 

the Government to seek a warrant either where the case was initiated or where the warrant was to be executed to relieve the burden, the judicial burden on my district, where all of the warrants 

were sought because they were all being executed in Silicon Valley. 

What is being proposed here is just the other side of that coin. 

These are all large companies. These are not, you know, Joe the 

ax murderer. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Ms. LOFGREN. Mr. Chairman, I ask to strike the last word. 

Chairman SENSENBRENNER. The gentlewoman is recognized for 5 

minutes. 

Ms. LOFGREN. I can recall a handful of situations where the 

ISPs, who are the recipients of these search warrants, have taken 

the step of moving to quash. But the question in my mind is why 

should we inconvenience the ISP on those occasions when they 

move to quash the warrant that’s been issued? We should at least 

grant them the same discretion. 

I don’t think this is a huge deal, frankly, because I don’t think 

it happens that often, but I do think it’s basic fairness. I appreciate 

the comments made about, you know, bad guys and robbers, but 

it really has absolutely nothing at all to do with this section of the 

Act, and never did, nor does it have anything to do with this 

amendment. 

And I think this should be something where we could actually 

agree. I mean we’ve disagreed on many things, but this should be 

something where we could agree to make a modification that is 

modest yet sensible, and I am at a loss other than we just vote 

party line all the time, why we wouldn’t agree on this very sensible 

manner. 

I don’t know if Mr. Watt would like to make any additions, or 

Mr Delahunt, who was asking to be recognized a minute ago. 

Mr. WATT. I thank the gentlelady for yielding. I basically have 

said what I have to say about this. I mean I think it’s a matter 

of fairness. It’s not about protecting anybody who has done anything criminal because the people who are the subjects of these 

electronic warrants, search warrants, are really not the terrorists, 

they just have the information. I just—I thought this was going to 

be a real non-controversial amendment myself, and I can’t imagine 

why we are so bent out of shape about this unless—I mean it is 

true that the Government now has the right to select the forum in 

which it gets its warrants, but I’m not even trying to give any advantage in the limited, very limited number of cases where a service provider is going to raise a question about a warrant. I’m not 

trying to give any advantage to them other than the advantage of 

convenience. 

I’m assuming that a judge who looks at a certain set of evidence 

in Virginia, a district court judge, is going to—the judge in California is going to look at and decide the same thing. 

Ms. LOFGREN. If I may reclaim my time. 

Mr. WATT. I yield back. 

Ms. LOFGREN. I mean this was—you know, I said it was my district. It wasn’t just my district, but most of these warrants are executed either in Northern Virginia or in Silicon Valley, and this was 

proposed, really as my recollection is, by the department, really for 

256

reasons of judicial economy to eliminate the burden on those judicial districts, and this doesn’t increase the burden on those judicial 

districts, and I think if you take a look at the Act itself, Section 

220, as well as 219, it becomes very clear what we have done and 

how modest is this amendment. 

Before yielding back I’d ask Mr. Delahunt if he wanted to make 

his final comment? 

Mr. DELAHUNT. I just, again, I would just echo what the gentleman, the proponent of the amendment has said. I just don’t 

think it’s a big deal. To me it’s just a housekeeping amendment 

that really closes the loop of what we did when we passed the PATRIOT Act out of this Committee. It’s the other side of that. And 

it does come down to convenience as opposed to putting the burden 

on—as opposed to putting the burden on the respondent. But if 

there’s some rational argument that can be made for opposing it, 

I haven’t heard it yet, and I would hope that those who oppose it 

would reconsider. 

With that I’ll yield back. 

Ms. LOFGREN. And I’ll yield back. Thank you, Mr. Chairman. 

Chairman SENSENBRENNER. The question is on the amendment 

offered by the gentleman from North Carolina, Mr. Watt. Those in 

favor will say aye. 

And those opposed, no. 

The noes appear to have it——

Mr. WATT. Mr. Chairman, I request a recorded vote. 

Chairman SENSENBRENNER. A recorded vote will be ordered. 

Those in favor of the Watt amendment will, as your names are 

called, answer aye, those opposed no, and the clerk will call the 

roll. 

The CLERK. Mr. Hyde? 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. Mr. Coble? 

[No response.] 

The CLERK. Mr. Smith? 

[No response.] 

The CLERK. Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. Mr. Goodlatte? 

Oh, I’m sorry. Mr. Smith, no. Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

257

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. Mr. Boucher? 

Mr. BOUCHER. Aye. 

The CLERK. Mr. Boucher, aye. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. Mr. Meehan? 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. Mr. Delahunt? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler? 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

Mr. SCHIFF. No. 

The CLERK. Mr. Schiff, no. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Pass. 

The CLERK. Ms. Sa ́nchez, pass. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. No. 

258

The CLERK. Ms. Wasserman Schultz, no. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their vote? Gentleman from North Carolina, Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Chairman SENSENBRENNER. Gentleman from Virginia, Mr. Goodlatte? 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. 

Chairman SENSENBRENNER. Gentlewoman from California, Ms. 

Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote? 

[No response.] 

Chairman SENSENBRENNER. If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 14 ayes and 24 noes. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. Gentleman from California, Mr. Schiff. 

Mr. SCHIFF. Mr. Chairman, I have three amendments at the desk 

which I’d like to offer en bloc. 

Chairman SENSENBRENNER. The clerk will report the amendments. 

The CLERK. Amendments to H.R. 3199 offered by Mr. Schiff of 

California. 

Add at the end the following: 

Sec. 9. Predicate offenses. 

Section 2332b(g)(5)(B)(i) of Title 18, United States Code is 

amended: 1) by inserting 2339d, relating to——

Mr. SCHIFF. Mr. Chairman, I’d request that the amendments be 

deemed as read. 

Chairman SENSENBRENNER. Without objection, so ordered, and 

without object, the amendments will be considered en bloc, and the 

gentleman from California is recognized for 5 minutes. 

[The amendments of Mr. Schiff follow:] 

259

1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MR. SCHIFF OF CALIFORNIA

Add at the end the following:

1 SEC. 9. PREDICATE OFFENSES.

2 Section 2332b)(g)(5)(B)(i) of title 18, United States

3 Code, is amended—

4 (1) by inserting ‘‘, 2339D (relating to military5 type training from a foreign terrorist organization)’’

6 before ‘‘, or 2340A’’ ; and

7 (2) by inserting ‘‘832 (relating to nuclear and

8 weapons of mass destruction threats),’’ after ‘‘831

9 (relating to nuclear materials),’’.


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1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MR. SCHIFF OF CALIFORNIA

Add at the end the following:

1 SEC. 9. FORFEITURE.

2 Section 981(a)(1)(B)(i) of title 18, United States

3 Code, is amended by inserting ‘‘trafficking in nuclear,

4 chemical, biological, or radiological weapons technology or

5 material,’’ after ‘‘involves’’.


3199W.AAB
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1

H.L.C.

AMENDMENT TO H.R. lll

OFFERED BY MR. SCHIFF OF CALIFORNIA

At the end of the bill, add the following new section:

1 SEC. ll. AMENDMENTS TO SECTION 2516(1) OF TITLE 18,

2 UNITED STATES CODE.

3 (a) PARAGRAPH (c) AMENDMENT.—Section

4 2516(1)(c) of title 18, United States Code, is amended

5 by striking ‘‘or section 1546’’ and all that follows through

6 the semicolon at the end and inserting the following: ‘‘sec7 tion 1546 (relating to fraud and misuse of visas, permits,

8 and other documents), section 37 (relating to violence at

9 international airports), section 175b (relating to biological

10 agents or toxins), section 832 (relating to nuclear and

11 weapons of mass destruction threats), section 842 (relat12 ing to explosive materials), section 930 (relating to posses13 sion of weapons in Federal facilities), section 1114 (relat14 ing to officers and employees of the United States), sec15 tion 1116 (relating to protection of foreign officials), sec16 tions 1361–1363 (relating to damage to government build17 ings and communications), section 1366 (relating to de18 struction of an energy facility), section 1993 (relating to

19 terrorist attacks against mass transportation), sections

20 2155 and 2156 (relating to national-defense utilities), secVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00265 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1

3199X.AAB
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2

H.L.C.

1 tions 2280 and 2281 (relating to violence against mari2 time navigation), or section 2340A (relating to torture);’’.

3 (b) PARAGRAPH (p) AMENDMENT.—Section

4 2516(1)(p) is amended by inserting after ‘‘other docu5 ments’’ the following: ‘‘, section 1028A (relating to aggra6 vated identity theft)’’.

7 (c) PARAGRAPH (q) AMENDMENT.—Section

8 2516(1)(q) of title 18 United States Code is amended by

9 inserting after ‘‘; or’’ at the end the following: ‘‘section

10 2339 (relating to harboring terrorists), or section 2339D

11 (relating to military-type training from foreign terrorists)

12 of this title; or’’.


3199X.AAC
263

Mr. SCHIFF. Thank you, Mr. Chairman. I’ll try to summarize 

these very quickly. The first amendment amends the definition of 

a Federal crime of terrorism. Section 808 of the PATRIOT Act 

made a number of important changes to the definition of terrorism 

to include sections of the criminal code which were involved with 

terrorist offenses. Since the passage of the PATRIOT bill there 

have been a number of new terrorism offenses that should be made 

reference to and incorporated within the definition of ‘‘terrorism.’’ 

This particular amendment would add offenses related to military 

type training from a foreign terrorist organization, and also offenses related to nuclear and weapons of mass destruction threats. 

These additional terrorism offenses were enacted via the 9/11 Commission bill. 

A second amendment as part of the en bloc deals with civil forfeiture and trafficking in WMD technology or material, and this 

amends the PATRIOT bill to include trafficking in nuclear, chem, 

bio or radiological weapons technology or material. Section 320 of 

the PATRIOT bill amended Federal law to specify that the proceeds of foreign crimes specifically related to drug trafficking are 

subject to forfeiture in the United States, and my amendment 

would extend this concept to include trafficking in nuclear, chem, 

bio or radiological weapons technology or material. It will allow us 

to go after the proceeds of criminal rings like AQ Khan. 

And finally, Mr. Chairman, I have an amendment to the omnibus 

Crime Control Provisions which add a number of provisions to the 

wiretap authority, which add additional terrorism and serious offenses to ensure law enforcement has the tools necessary to——

Chairman SENSENBRENNER. Will the gentleman yield? 

Mr. SCHIFF. Yes, Mr. Chairman. 

Chairman SENSENBRENNER. First let me say I think the gentleman has made three very constructive additions, and I am prepared to accept these amendments en bloc. I would ask, however, 

unanimous consent that the staff be authorized to make a technical 

correction to the third amendment offered by the gentleman from 

California, to put the sections that he had cited in the proper numerical order so that they appear at the proper place in the statute. 

Mr. SCHIFF. I thank the Chairman. 

Chairman SENSENBRENNER. Without objection, the modification 

is agreed to. I thank the gentleman for yielding. 

Mr. SCHIFF. Mr. Chairman, I’d be delighted to yield back the balance of my time. 

Chairman SENSENBRENNER. The question is on the amendments——

Ms. LOFGREN. Mr. Chairman? 

Chairman SENSENBRENNER. Gentlewoman from California. 

Ms. LOFGREN. I would like to ask a question of Mr. Schiff. 

Chairman SENSENBRENNER. The gentlewoman strikes the last 

word——

Ms. LOFGREN. I do. 

Chairman SENSENBRENNER.—and is recognized for 5 minutes 

Ms. LOFGREN. On your amendment No. 64, I’m seeking to understand the impact of lines 6 and 7. 

Mr. SCHIFF. Yes. Lines 6 and 7 refer to what’s existing already 

in the PATRIOT bill. It doesn’t add that, but because we’re adding 

264

all the language after that, and the previous language in lines 3, 

4 and 5, says strike the beginning of that section. 

Ms. LOFGREN. All right. 

Mr. SCHIFF. So we’re not adding——

Ms. LOFGREN. Not adding anything. 

Mr. SCHIFF. We’re not adding the ‘‘fraud and misuse of visas, 

permits.’’ That was already there. We’re adding what appears 

thereafter, violence at airports, biological agents and toxins, nuclear and weapons of mass destruction threats, et cetera. 

Ms. LOFGREN. So the renumbering argument I understand now, 

and I thank the Chairman for recognizing me and yield back. 

Chairman SENSENBRENNER. The question is on agreeing to the 

amendments offered by the gentleman from California, Mr. Schiff, 

en bloc. Those in favor will say aye. 

Opposed, no. 

The ayes appear to have it. The ayes have it, and the amendments en bloc are agreed to. 

Are there further amendments? The gentlewoman from California, Ms. Lofgren. 

Ms. LOFGREN. I have an amendment actually coming to the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment 

once it is received. 

The CLERK. Amendment to H.R. 3199 offered by Ms. Lofgren of 

California. 

At the end of the bill add the following: 

Section lll. Clarification of habeas corpus 

No act of Congress passed since the terrorist attacks of 9/11, including USA PATRIOT Act, shall be construed to limit or suspend 

the writ of habeas corpus. 

Chairman SENSENBRENNER. The gentlewoman is recognized for 5 

minutes. 

[The amendment of Ms. Lofgren follows:]

Ms. LOFGREN. Mr. Chairman, the writ of habeas corpus in Article 

I, Section 9 says that the privilege of the writ of habeas corpus 

shall not be suspended unless when in cases of rebellion or invasion the public safety may require it. 

As the Chairman will recall, I’m sure, the very first unpublic 

draft of the United States PATRIOT Act sent over from the Department of Justice contained a chapter titled ‘‘Suspension of habeas 

corpus,’’ and as we all know, the Congress declined to—with the 


3199TT.eps
265

Chairman’s leadership—to accept that provision, Yet many Americans are concerned that what has been done since 9/11 has, 

through back-door methods, in essence, accomplished that same result. 

For example, the administration has claimed the power to declare suspected terrorists, including American citizens, ‘‘enemy 

combatants’’ and to hold them indefinitely without access to U.S. 

courts. Last year the Supreme Court disagreed and recognized that 

detainees have the right to file habeas writs in Federal courts. Unfortunately, the Court left many details unanswered, and so many, 

including Mr. Jose Padilla, an American citizen, are still being held 

indefinitely without charge. 

In addition, it appears that the Department of Justice has used 

the material witness statute as a means to hold suspects without 

charge, which I addressed during the discussion of a previous 

amendment. 

Habeas corpus is one of the foundations of American freedom. It 

was first enshrined in the Magna Carta 700 years ago and forms 

a key foundation for the U.S. Constitution. It prevents the Government from arresting a person and holding them indefinitely without charge. 

Now, I realize that these issues are not squarely within the Act 

itself, but I’m sure the members of the Committee will recall the 

dialogue that I had with the witness from the Justice Department 

on this very issue. And I hope you’ll recall that when I asked the 

Justice Department, the Assistant Attorney General, whether or 

not he agreed that including a reaffirmation of the writ of habeas 

corpus in whatever we did in the PATRIOT Act would be a good 

idea, he did not disagree. 

I hope that we can clarify that nothing the Congress has done 

has suspended the writ of habeas corpus. I think it may make—

some have guessed otherwise. I think it would clarify that point in 

a way that would be very healthy for our Republic and very useful 

for the Judiciary, and I hope that this is something that we can 

do unanimously, reaffirming the great writ that has kept America 

free for so many years. 

And with that, I would yield back the balance of my time. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Lungren. 

Mr. LUNGREN. Mr. Chairman, I rise in opposition to this amendment. 

Chairman SENSENBRENNER. The gentleman’s recognized for 5 

minutes. 

Mr. LUNGREN. I mean this is so broad, no act of Congress passed 

since the terrorist act of 9/11 should be construed to limit or suspend the writ of habeas corpus. We have a bill that is being entertained by this Committee right now talking about streamlining appellate procedures which affects the writ of habeas corpus, and 

some would suggest it gets rid of some of the excesses of habeas 

corpus that are, I would suggest, being observed in certain parts 

of the country, particularly in the Ninth Circuit at the present 

time. I just think——

Ms. LOFGREN. Would the gentleman yield? 

Mr. LUNGREN. Yes, I’ll be happy to yield. 

266

Ms. LOFGREN. I would ask unanimous consent to remove the 

words ‘‘limit or’’ from the amendment. 

Mr. LUNGREN. I appreciate that. If the Chairman recognizes you 

to——

Mr. Chairman, she’s asking unanimous consent to remove the 

words——

Ms. LOFGREN. ‘‘Limit or.’’

Mr. LUNGREN. ‘‘Limit or.’’

Chairman SENSENBRENNER. Without objection, the modification 

is agreed to. 

Mr. LUNGREN. And with that, I would remove my objection. 

Chairman SENSENBRENNER. The question is on agreeing to the 

amendment offered by the gentlewoman from California, Ms. Lungren—Ms. Lofgren. [Laughter.] 

I’m falling into the trap too. 

Those in favor will say aye. 

Opposed no. 

The ayes appear to have it. The ayes have it, and the amendment is agreed to. 

Are there further amendments? The gentleman from California, 

Mr. Schiff. 

Mr. SCHIFF. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 3199 offered by Mr. Schiff of 

California. 

Page 6, line 7, strike ‘‘(5)’’ and insert ‘‘(6)’’. 

Page 6, after line 6, insert the following new paragraph: 

(5)(A) In the case of an order requiring the production of tangible 

things from a library or bookstore or medical records that contain 

personally identifiable information and subject to subparagraph 

(B), at the conclusion of an——

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read, and the gentleman from California is recognized for 5 minutes. 

[The amendment of Mr. Schiff follows:] 

267

1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MR. SCHIFF OF CALIFORNIA

Page 6, line 7, strike ‘‘(5)’’ and insert ‘‘(6)’’.

Page 6, after line 6, insert the following new paragraph:

1 ‘‘(5)(A) In the case of an order requiring the

2 production of tangible things from a library or book3 store or medical records that contain personally

4 identifiable information and subject to subparagraph

5 (B), at the conclusion of an investigation described

6 in subsection (a) of an individual who is a citizen of

7 the United States, the nondisclosure requirements of

8 this section shall cease to apply.

9 ‘‘(B) The Director of the Federal Bureau of In10 vestigation or designee of the Director may make an

11 application to a judge of the court established by

12 section 103(a) to continue the application of the

13 nondisclosure requirements of this subsection after

14 the completion of such an investigation.’’.


3199Y.AAB
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Mr. SCHIFF. Thank you, Mr. Chairman. This amendment is offered by myself and also by Ms. Waters. 

This applies to Section 215 and again applies specifically to those 

records that Americans have the most concern about preserving 

their privacy, that is, library records or book store records or medical records. And when this amendment very simply does, is it says 

that—and it’s very narrowly drawn—that the—well, let me back up 

1 second. 

The debate on the library records, I think has been a very difficult one when you get into the weeds on what’s involved. When 

you compare the grand jury process to the FISA process, in the 

grand jury process you can get a grand jury subpoena for library 

records or any other kind of record without prior court approval. 

However, there’s no prohibition on telling the subject of the grand 

jury subpoena that their records have been subpoenaed. In the 

FISA context you have prior court approval, which is positive, but 

at the same time you have a statutory prohibition on ever disclosing the FISA order to the subject of the order, and therefore, 

there’s really no check on the issuance of that order. 

What my amendment does is it says that first the existing prohibition on disclosure of a FISA order for a medical record or a library record would be lifted after the investigation has been concluded; second, this would only apply to U.S. citizens. So this does 

not extend to foreign nationals, or as Ms. Lofgren pointed out to 

me earlier, even lawful permanent residents. It only applies to U.S. 

citizens’ library records, U.S. citizens’ book store records, and U.S. 

citizens’ medical records. 

And third, the FBI would have the ability to petition the court 

for good cause shown, the FISA Court, that the non-disclosure requirement should not be lifted in that particular case. 

So this couldn’t be drawn more narrowly. It only applies to library records, book store records and medical records. It only applies after the investigation has concluded, and it has the additional safety valve of allowing the FBI to go to the FISA Court, and 

for good cause shown, continue to maintain the non-disclosure 

order. So I can’t imagine how it could be drawn more narrowly. At 

the same time I think it protects American citizens in their expectation of privacy with their medical records and their library 

records, and I hope that it may be the one amendment in this area 

that the majority will find acceptable. 

I would be happy to yield back the balance of my time. 

Mr. GOODLATTE. [Presiding] Who seeks time? 

The gentlewoman from Florida is recognized for 5 minutes. 

Ms. WASSERMAN SCHULTZ. Thank you, Mr. Chairman. I support 

the gentleman from California’s amendment, and just wanted to 

make a suggestion, depending on the will of the Committee, not 

necessarily on this amendment, but on the one which he withdrew 

earlier as well, which is the same issue, that the Director of the 

Federal Bureau of Investigation may or may not be the appropriate 

person to do the review because if you had the Attorney General 

do that review, as well as in the amendment earlier today, you 

would have both a law enforcement agent doing the request for the 

tangible things like library books or medical records, and the review by the Attorney General would be done by a prosecutor. 

269

Simply because there is no judicial review of this whole process, 

it would be, I think, helpful to have both the prosecutor and the 

law enforcement agent be part of that process. That’s just my 

thoughts. 

And I yield back. 

Mr. GOODLATTE. Gentlewoman yields back. The gentleman from 

California is recognized for 5 minutes. 

Mr. LUNGREN. Strike the last word. If I could ask the gentleman 

from California, the author of this bill, a couple of questions. 

You say at the conclusion of the investigation described in Subsection (A) of the individual, if there are a series of investigations, 

this being just one of them, but information gained in this go to 

the other investigation which is not yet completed, would they be 

required to disclose without going to the court? 

Mr. SCHIFF. No. Will the gentleman yield? 

Mr. LUNGREN. Sure. 

Mr. SCHIFF. No, there’s nothing that mandates disclosure here. 

What it says is that we remove the legal prohibition of disclosure 

so that—when you issue a grand jury subpoena now for a business 

record, a library record or whatnot, there’s no mandate that the library disclose the subpoena request or that the business disclose 

it. In fact, they are heavily discouraged from doing it. But they’re 

not legally prohibited from doing it, and this would remove the 

legal prohibition. 

In the circumstance you mentioned, either, (A) the investigation 

would be deemed to be ongoing because there’s a related investigation ongoing, or (B) if there were any question about it and the investigative agency, the FBI, felt that by disclosing to the American 

citizen that their library record had been requested, would it somehow impede the related investigation, they could go to court and 

that would be good cause for the court to extend the non-disclosure. 

So in the circumstances you described, the Government would still 

be able to protect its investigation. 

Mr. LUNGREN. So the gentleman would remove the current state 

of the law which obviously promotes non-disclosure. The assumption—the presumption that non-disclosure is necessary in these foreign intelligence surveillance cases. 

Mr. SCHIFF. If the gentleman would yield, in very narrow circumstances, first of all, vis-a-vis only U.S. citizens; second, under 

the whole range of records under 215, only vis-a-vis library, book 

store and medical records; and third, only where the Government 

decides that they can’t show good cause——

Mr. LUNGREN. Right, but the premise is for the very use of this 

section is that it’s a case involving international terrorism or clandestine intelligence activity, and what you’re saying is if a U.S. citizen is involved in that, that disclosure takes place. 

Mr. SCHIFF. Not that disclosure takes place, but that the prohibition on disclosure——

Mr. LUNGREN. Prohibition against non-disclosure——

Mr. SCHIFF. Prohibition against non-disclosure is removed, that 

there’s an affirmative obligation of the Government to tell the 

Court why it’s necessary to continue non-disclosure to an American 

citizen that their library record was requested. 

Mr. LUNGREN. And so the gentleman’s argument is that in an 

international terrorism case or clandestine intelligence activity, we 

270

do make a distinction under your amendment between a U.S. citizen and non U.S. citizen? 

Mr. SCHIFF. We do. I mean there are foreign nationals in the 

United States who are here very legitimately and may be here very 

illegitimately that we wouldn’t want to protect this way, but what 

really is the broader picture I think is that the American people 

are concerned were their library records being subject of review. 

And I think that we can satisfy all of the legitimate law enforcement interests and also protect the civil liberties interests of Americans to know that their reading habits aren’t being scrutinized, 

and that there isn’t a prohibition on disclosure unless good cause 

has been shown for why that should continue after the investigation is concluded. 

And again, we put in so many safeguards here, American citizen, 

only certain records, only after investigation is done, and only 

when the Government chooses not to go to court or can’t show good 

cause to continue the non-disclosure order. 

Mr. KING. Would the gentleman yield? 

Mr. SCHIFF. Yes. 

Mr. KING. I thank the gentleman. I’m reading here from the 

amendment, and lines 6, 7 and 8, of an individual who is a citizen 

of the United States, the non-disclosure requirements of this section shall cease to apply. 

Does your amendment, Mr. Schiff, presume that terrorists will 

not be U.S. citizens in the fashion of the bombers in London that 

were British citizens? How does that play out within this—as you 

envision this language? 

Mr. SCHIFF. Will the gentleman yield? 

Mr. KING. Yes. 

Mr. SCHIFF. I would assume that the circumstances in which a 

U.S. citizen is the subject of a FISA order are far the exception and 

not the rule because the FISA rules are, No. 1, directed at agents 

of foreign governments. But, no, it doesn’t assume that it will never 

be the case that an American might be involved in terrorism, but 

it does say that where there is an American who is the subject of 

an order to produce their library record or the medical record or 

records which it’s hard to imagine things being more personal and 

private, that at the conclusion of the investigation, when the investigation is done and the Government no longer has any good cause 

to refrain from informing the person, presumably because the investigation either revealed that they were not properly the suspect 

or they’ve already been convicted of an offence, then disclosure is 

not legally prohibited. 

The reason why I think this is important is that unlike the grand 

jury process, there is no safeguard of ultimate notification in this, 

and even with this very limited amendment, the Director of the 

FBI and his designee can go and ask for a continuing non-disclosure order. 

Mr. KING. Would the gentleman yield again? 

Mr. SCHIFF. Yes. 

Mr. KING. I thank the gentleman. But wouldn’t this put a noncitizen, someone who has either an unlawful presence or a lawful 

presence in the United States at a disadvantage as opposed to a 

United States citizen with regard to this type of investigation, and 

271

wouldn’t that be a distinction that generally one wouldn’t support 

as we approach this level of jurisprudence on these cases? 

Mr. SCHIFF. You know, I think that we can and we do distinguish 

between U.S. residents, citizens and lawful residents, and foreign 

nationals. They have different expectations of privacy. I frankly, if 

the gentleman wants to suggest it, would be happy to include lawful residence in addition to U.S. citizens. I think that makes sense. 

But I think it also is perfectly appropriate to distinguish levels 

of privacy expectation of foreign nationals in the country and of 

American citizens and lawful residents. 

Mr. KING. I thank the gentleman. 

Mr. FRANKS. Would the gentleman yield? 

Mr. GOODLATTE. The gentleman from California, Mr. Lungren, 

controls the time. 

Mr. LUNGREN. I’m trying to reclaim it, but I will yield to whoever 

is asking for it right now. 

[Laughter.] 

Mr. FRANKS. Thank you, Mr. Lungren. 

I wanted to ask, in line 2, the library or book store, that seems 

to be potentially a fairly broad possibility. Would that include all 

libraries, book stores? Would it include things like 7-11 perhaps? 

I mean are there any specific definitions there? And with the same 

respect to personally identifiable information, what would be included in that and how would you specify that? 

Mr. SCHIFF. If the gentleman will yield. 

Mr. FRANKS. I will yield. 

Mr. SCHIFF. If I were the FISA Court I wouldn’t interpret 7-11 

as a book store unless they had an awfully good magazine rack, 

and even then. So I would not interpret it that way, but again, 

when you look at the scope of business records that are subject to 

the FISA Court, which is unlimited, we’re talking about a very narrow subsection which also is that narrow subsection which is of 

most concern to the American people. It’s not an arbitrary choice, 

and it’s because these records are of such concern to the American 

people, that I think they’re deserving of greater protection. 

Chairman SENSENBRENNER. [Presiding] The time of the gentleman has expired. 

Mr. DELAHUNT. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Massachusetts, 

Mr. Delahunt. 

Mr. DELAHUNT. I will yield to my friend from California, the proponent of the amendment. I think he alluded to it, but I think 

we’ve got to put some context here. I think we all probably sense 

that among the American people there is a profound concern about 

what Government is doing, what is happening. And I think it’s understandable that we have recalibrated, if you will, the tensions between national security on one hand and individual liberties and 

privacy on another. But at the end of the day, in a healthy viable 

democracy, openness and transparency and respect for privacy is 

what it’s about in terms of securing the confidence of the people 

that there is a viable functioning democracy. 

I think the gentleman’s amendment is a gesture towards recalibrating, if you will, those interests, particularly privacy interests, 

and the interest of transparency and understanding what the GovVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00275 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1
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ernment is doing. In a larger sense it’s a gesture towards moving 

that back in a direction that I think is important. 

With that, I’ll yield to my friend from California. And I applaud 

him, and I think this is an amendment that is a gesture. 

Mr. SCHIFF. I thank the gentleman for yielding, and I think what 

this amendment really ought to speak to the American people 

whose concern is that the Government might be looking or interested in their reading habits or their medical history, that I hope 

we’re going to say to them, look, if the Government has a legitimate reason to request of the FISA Court your library record or 

your medical record, and you’re an American citizen, when the investigation is done, if there’s no good cause not to inform you of it, 

we will inform you of it. 

And I would hope the America people at a minimum have a right 

to expect that, that when the investigation is done, if they’re exonerate or they’re incarcerated, whatever the case may be, and 

there’s no further impact on the investigation, there can be no good 

cause shown, that there shouldn’t be a legal bar of a library to tell 

their patron that their record was requested. I hope we’re not going 

to say to the American people that even in these narrow circumstances we’re not prepared to protect your privacy or provide 

any check. 

So I haven’t heard opposition yet from my colleagues. 

Mr. LUNGREN. Would the gentleman yield? 

Mr. SCHIFF. I hear the struggle to find a reason to oppose, but 

don’t work so hard. 

Mr. LUNGREN. Well, you keep talking and——

Mr. SCHIFF. I’ll stop. 

Mr. DELAHUNT. Reclaiming my time, I would just note that the 

Director of the Information Security Oversight Officer for the Executive Branch has suggested that we are on a record pace in terms 

of classification. We are putting a veil over the operations of Government in this country, and we’ve got to start to begin to reverse 

that trend. And again, this is noting of great significance, with all 

due respect, in the larger scheme of things. But I think it’s a demonstration to the American people that we recognize that there is 

a balance between national security and the values that we actually are fighting for in terms of dealing with the issues of terrorism. 

With that I yield back. 

Chairman SENSENBRENNER. The question is on the amendment 

offered by the gentleman from California, Mr. Schiff. Those in favor 

will say aye. 

Opposed, no. 

The ayes appear to have it. 

Mr. SMITH. We would like a recorded vote. 

Chairman SENSENBRENNER. The gentleman from Texas asked for 

a recorded vote. A recorded vote is ordered. Those in favor will, as 

your names are called, answer aye, those opposed no, and the clerk 

will call the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

The CLERK. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. Mr. Smith? 

273

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. Mr. Goodlatte? 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte, aye. Mr. Chabot? 

[No response.] 

The CLERK. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

[No response.] 

The CLERK. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

[No response.] 

The CLERK. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

[No response.] 

The CLERK. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. Mr. Boucher? 

Mr. BOUCHER. Aye. 

The CLERK. Mr. Boucher, aye. Mr. Nadler? 

[No response.] 

The CLERK. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

[No response.] 

The CLERK. Ms. Lofgren? 

[No response.] 

The CLERK. Ms. Jackson Lee? 

[No response.] 

274

The CLERK. Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler? 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their vote? Gentleman from Indiana, Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. 

Chairman SENSENBRENNER. Gentleman from Ohio, Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. 

Chairman SENSENBRENNER. Gentleman from Florida, Mr. 

Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote? 

[No response.] 

Chairman SENSENBRENNER. If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 13 ayes and 20 noes. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. Are there further amendments? The gentleman from Florida, 

Mr. Wexler? 

Mr. WEXLER. Thank you, Mr. Chairman. I will be quick. I just 

would like to follow up on the amendment that we spoke about. 

Chairman SENSENBRENNER. Is the gentleman offering an amendment or moving to strike the last word? 

Mr. WEXLER. Yes, amendment. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

Mr. WEXLER. The same amendment that was offered before. 

The CLERK. Amendment to H.R. 3199 offered by Mr. Wexler of 

Florida.

275

At the end of the bill add the following: 

Section lll. Preventing the revelation——

Mr. WEXLER. Move that we consider it as read, Mr. Chairman. 

Chairman SENSENBRENNER. Without objection, so ordered. The 

gentleman is recognized for 5 minutes. 

[The amendment of Mr. Wexler follows:]

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3199UU.eps
277

Mr. WEXLER. Mr. Chairman, I will be brief. We concluded the 

previous debate. The gentleman from Iowa had suggested that the 

language that was included in the amendment was either too broad 

or nebulous. There was a discussion as to whether similar language 

was actually contained in the U.S. Code, particularly in the criminal sections. In fact, there is precisely the same language in the espionage section, and there are several sections that contain almost 

exactly the precise language. 

Mr. Chairman, I thought your remarks at the end of the debate 

were exactly on point. This amendment would not in any way affect the investigation of or the conclusion or ramifications of the investigation regarding Mr. Rove. The issue is really quite simple. 

The issue is current law, on its face, criminalizes the knowing disclosure of classified information that identifies a covert agent. 

What this amendment would adopt is to go a step further in the 

protection of our CIA and intelligence agencies, to simply provide 

in addition to that standard, that if a person provides information 

pertaining to the identity of an undercover intelligence officer, 

agent, informant, or source, that the person has or should have 

reason to believe would be sufficient to identify that person, then 

it would be actionable under this section of the PATRIOT Act. 

And I will conclude with that, Mr. Chairman, and ask that we 

adopt this language to support the undercover work that our 

agents, our patriotic agents are doing. 

Chairman SENSENBRENNER. Does the gentleman yield back? 

Mr. WEXLER. Yes. 

Chairman SENSENBRENNER. The gentleman from Iowa, Mr. King. 

Mr. KING. Mr. Chairman, move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. KING. I thank the gentleman, and as I understand this 

agreement here before this Committee—and I had made the statement that the language, ‘‘a person has or should have reason to believe,’’ didn’t exist elsewhere in the code. And my information that 

comes from our staff, that has twice now done a word search 

through the entire U.S. Code, it comes back to—this is my information. There are multiple uses of ‘‘has reason to believe’’ but there 

are no occurrences of ‘‘should have reason to believe’’ or ‘‘has or 

should have reason to believe.’’ So I would ask the gentleman to 

please produce that language. If I am proven incorrect, I am certainly happy to make that apology, and I would hope the gentleman would——

Chairman SENSENBRENNER. Will the gentleman from Iowa yield? 

Mr. KING. I would yield. 

Chairman SENSENBRENNER. During the interim since the gentleman from Florida offered this amendment previously, we had 

the Office of Law Revision Counsel do a U.S. Code search using the 

words ‘‘should have reason to believe.’’ The result of the search is 

zero documents found, zero returned. So the language that the gentleman is proposing to insert appears nowhere else in the U.S. 

Code according to the Office of Law Revision Counsel. I yield back 

to the gentleman from Iowa. 

Mr. KING. I thank the gentleman. I rest my case. 

Mr. BERMAN. Would the gentleman yield further? 

Mr. KING. I would yield. 

278

Mr. BERMAN. Just like an attorney talking off the top of his head, 

I cited a specific statute that I had bee involved with back in the 

mid ’80’s. Your side actually listened to what I said and checked 

it out and found out that the section I was referring to was repealed in 1988. How I let that happen, I don’t know, but——

[Laughter.] 

Mr. BERMAN. I probably wasn’t anticipating this day at the time. 

Mr. WEXLER. Would the gentleman yield? 

Mr. KING. I have a—reclaiming my time, and I will in a moment, 

Mr. Wexler. But I’d like to point out that the gentleman, Mr. Berman, has a memory that goes back specifically to specific language 

in 1988, and I suspect he has some current knowledge of the code 

as well that hasn’t been divulged yet today. 

And I’d yield to the gentleman from Florida. 

Mr. WEXLER. Not to belabor the point, there are several references in the statutes with respect to ‘‘has reason to believe.’’ If 

we’re arguing over ‘‘has’’ or ‘‘have,’’ that’s fine. It really is not relevant to the issue before the Committee. And as a point, Mr. Berman is exactly correct, but ironically, the language that was adopted in the amendment, as Mr. Berman suggested, I would respectfully suggest is even more nebulous than the original language 

where it talks about if a person is aware of a high probability of 

the existence of such circumstance. That’s actually current law. 

So all I’m trying to insert is language, as we have discussed, 

‘‘have reason to believe,’’ ‘‘has reason to believe,’’ all of that doesn’t 

get to the issue. The issue is, if a person provides information 

which that person reasonably would believe would disclose the 

identity of a covert agent, do you think it ought to be actionable, 

or do you think it ought to be just okay? 

Mr. KING. Reclaiming my time. My statement was that the language, ‘‘should have reason to believe’’ is vague, it’s nebulous, and 

it puts an extra level of responsibility on an individual, and it 

might go so far as to say that they should have gone and done research, gotten an education, investigated. I think the language is 

too broad. That was my issue then. And the gentleman from Florida, I would expect, given the agreement, that he would offer this, 

if that language wasn’t correct, finding out that this language exists nowhere in the code, I would hope the gentleman would withdraw his amendment. 

Mr. WEXLER. I would request unanimous consent—it does exist 

once. But that’s not the argument. I would be happy to ask for 

unanimous consent to conform with the has reasoned to believe 

rather than have reason to believe, which, if I understand it correctly, is presented in the statutes on many occasions. Be happy to 

do that. 

Chairman SENSENBRENNER. Is there objection to the unanimous 

consent? Objection is heard. 

The question is on agreeing to the Wexler Amendment. Those in 

favor will say aye. Opposed, no. 

Noes appear to have it. The noes have it, and the amendment is 

not agreed to. 

For what purpose does the gentleman from Indiana, Mr. 

Hostettler seek recognition. 

Mr. HOSTETTLER. Mr. Chairman, I have an amendment at the 

desk. 

279

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Hostettler. 

Nothing in this bill shall be construed as repealing or modifying 

any provision contained in Public Law 109-72. 

[The amendment of Mr. Hostettler follows:]

280

Chairman SENSENBRENNER. The gentleman from Indiana is recognized for 5 minutes. 

Mr. HOSTETTLER. I thank the Chairman. Mr. Chairman, this 

amendment would simply clarify and actually remove a probability 

that an amendment offered earlier and accepted by the Committee 

by Ms. Lofgren would not be able to repeal a provision that was 

passed earlier this year in the Real-ID Act that was authored by 

Rules Chairman David Dreier that would prevent criminal aliens 

from delaying their deportations through excessive appeals. 

My amendment would make sure that her amendment would not 

be so construed to effectively repeal the Dreier Amendment. Criminal aliens should not get two bites of the apple, and the Real-ID 

Act provided their appeals in the U.S. Circuit Courts and not in 

U.S. District Courts with regard to a final order of removal and it 

would not allow them to go initially to the District Courts and then 

to circuit courts, but would rather require them to go immediately 

to the circuit courts. And with that, I yield back the balance of my 

time. 

Mr. BERMAN. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Berman. 

Mr. BERMAN. One, is it too late for me to reserve a point of 

order? 

Chairman SENSENBRENNER. Yes, it is. The gentleman has—from 

Indiana has already been recognized. 

Mr. BERMAN. Yeah. I didn’t—I mean I didn’t see the amendment. 

Chairman SENSENBRENNER. The amendment was read in full. 

Mr. BERMAN. But if I will read this amendment, and you tell me 

what it’s about. Nothing in this law shall be construed as repealing 

or modifying any provision contained in Public Law 109-72. 

I may remember something that was in the law in 1980, but I 

don’t remember it by the number of the bill. 

Chairman SENSENBRENNER. If the gentleman will yield. That is 

the Iraq Supplemental Appropriation bill. 

Mr. BERMAN. Oh, no. Based on the description of the gentleman 

in describing his amendment, I understand the amendment. Let 

me ask for an advisory opinion. 

Do you give advisory opinions? 

Chairman SENSENBRENNER. The chair is not authorized to do so. 

Mr. BERMAN. Would provisions that affect the immigration law 

that were not germane to this bill now become germane to this bill 

if this amendment were to pass? 

Chairman SENSENBRENNER. The chair is not in the business of 

providing advisory opinions. 

Mr. BERMAN. How about speculative musings? 

[Laughter.] 


3199Z.eps
281

Chairman SENSENBRENNER. The chair plays by the rules, and I 

don’t see any section of the Rules of the House or of the Committee 

with the heading speculation. 

Mr. BERMAN. Could, on my time, the gentleman once again describe exactly what provision of the law so I can prepare the many 

amendments I think would be good on the issue of immigration. 

Mr. HOSTETTLER. If the gentleman will yield? 

Mr. BERMAN. And exactly know where I’ll have germane provision? 

Mr. HOSTETTLER. If the gentleman would yield? 

Mr. BERMAN. Yes. Oh, sure. 

Mr. HOSTETTLER. To the extent that the amendment offered by 

Ms. Lofgren affected and was allowed to be offered to affect immigration law, my amendment would likewise potentially affect immigration law. 

Mr. BERMAN. Ms. Lofgren offered an amendment on suspension 

of writ of habeas corpus. 

Mr. HOSTETTLER. And my amendment says that nothing shall be 

construed as repealing or modifying any provision contained in 

Public Law 109-72. 

Mr. BERMAN. Well, I guess we have to bring a case or controversy 

before the Committee. And thank you. 

Ms. LOFGREN. Mr. Chairman? 

Chairman SENSENBRENNER. The gentlewoman from California, 

Ms. Lofgren. 

Ms. LOFGREN. I move to strike the last word. 

Chairman SENSENBRENNER. The gentlewoman is recognized for 5 

minutes. 

Ms. LOFGREN. Not having the Iraq appropriations bill handy, I 

will rely on my memory, but there was concern, at least on my 

part, when that measure was considered that there was an impingement on the writ of habeas corpus. 

But I don’t think there was a suspension of habeas corpus. And 

I think this goes to the point made by my colleague from California, Mr. Lungren, earlier, which relates to the ability of the Congress to prescribe procedural limitations on the exercise of the writ 

of habeas corpus that falls short of the action that the Congress 

needs to take in Article I, Section 9, to suspend the writ of habeas 

corpus only in cases of rebellion or invasion when the public safety 

may require it. 

So unless the gentleman from Indiana is suggesting that the 

Congress has suspended habeas corpus in its prior action, I would 

suggest that this amendment should be rejected. 

And I really do think that, you know, although this was adopted 

because no one wants to say that we’re suspending habeas corpus, 

there is a very serious issue here, and the—Mr. Chairman, the 

Committee is not in order. 

Chairman SENSENBRENNER. The gentlewoman is correct. The 

Committee will be in order. Conversations will cease. 

Ms. LOFGREN. Thank you, Mr. Chairman. I do think that when 

we are discussing the suspension of the writ of habeas corpus, we 

should pay attention. And Mr. Hostettler seems to be suggesting, 

by his amendment, that, in fact, the Congress did act, as only the 

Congress may, as we learned from President Lincoln’s abortive attempt to suspend the writ through executive order, that the ConVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00285 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1
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gress has acted in the Iraq appropriations bill, to suspend the writ 

of habeas corpus. 

I think that is not the case, but if this amendment is passed, I 

think it affirms that, in fact, the Congress did suspend the writ of 

habeas corpus, unknowingly I would assume on the part of some. 

So I think that this is not a harmless amendment. It really has 

great import for the actions and of the Congress, and as a precedent for the nation. As we know, the Congress has never, in the 

entire history of the United States, acted to suspend the writ of habeas corpus. And I would argue that if, in fact, Mr. Hostettler is 

suggesting we did so in Public Law 109-72 that we have not met 

the predicate that is outlined in Article I, Section 9 because we are 

not in the situation of rebellion or invasion that is required—that 

the Congress is required to find before deciding that public safety 

requires the suspension of the writ. 

So I would—I think this is very serious business. I strongly urge 

the Committee to reject Mr. Hostettler’s amendment, and I hope 

that all of us can go home to our districts this weekend and let 

them know that we have not, for the first time in the proud history 

of the nation, acted to suspend the great writ in this Congress. 

And with that, I would yield back the balance of my time. 

Chairman SENSENBRENNER. The gentleman from Indiana, Mr. 

Hostettler? 

Mr. HOSTETTLER. Mr. Chairman, I withdraw my amendment and 

I move to reconsider the amendment offered by Ms. Lofgren. 

Chairman SENSENBRENNER. The question is shall the vote by 

which the Lofgren Amendment was agreed to be reconsidered. 

Those in favor will say aye. Opposed, no. 

The noes appear to have it. 

A rollcall will be ordered. 

The question is shall the vote by which the Lofgren Amendment 

was agreed to be reconsidered? Those in favor will as your names 

are called answer aye. Those opposed, no. 

Mr. NADLER. Mr. Chairman, parliamentary inquiry. 

Chairman SENSENBRENNER. The chair has already put the question to the clerk to call the roll. 

Mr. NADLER. Question on the question. 

Chairman SENSENBRENNER. It went—once the question is put, 

then the rollcall begins. 

Mr. NADLER. Could I ask which amendment we’re talking about? 

That’s all I want to know. 

Chairman SENSENBRENNER. This the Lofgren Amendment relative to habeas corpus; is the one the gentleman made his motion 

to reconsider. Those in favor of reconsidering the vote by which the 

amendment was agreed to will as your names are called answer 

aye. Those opposed, no, and the clerk will call the role. 

The CLERK. Mr. Hyde? 

[No response.] 

The CLERK. Mr. Coble? 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble, aye. Mr. Smith? 

Mr. SMITH. Aye. 

The CLERK. Mr. Smith, aye. Mr. Gallegly? 

Mr. GALLEGLY. Aye. 

The CLERK. Mr. Gallegly, aye. Mr. Goodlatte? 

283

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte, aye. Mr. Chabot? 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, aye. Mr. Lungren? 

Mr. LUNGREN. Aye. 

The CLERK. Mr. Lungren, aye. Mr. Jenkins? 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins, aye. Mr. Cannon? 

Mr. CANNON Aye. 

The CLERK. Mr. Cannon, aye. Mr. Bachus? 

Mr. BACHUS. Aye. 

The CLERK. Mr. Bachus, aye. Mr. Inglis? 

[No response.] 

The CLERK. Mr. Hostettler? 

Mr. HOSTETTLER. Aye. 

The CLERK. Mr. Hostettler, aye. Mr. Green? 

Mr. GREEN. Aye. 

The CLERK. Mr. Green, aye. Mr. Keller? 

Mr. KELLER. Aye. 

The CLERK. Mr. Keller, aye. Mr. Issa? 

Mr. ISSA. Aye. 

The CLERK. Mr. Issa, aye. Mr. Flake? 

Mr. FLAKE. Aye. 

The CLERK. Mr. Flake, aye. Mr. Pence? 

Mr. PENCE. Aye. 

The CLERK. Mr. Pence, aye. Mr. Forbes? 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes, aye. Mr. King? 

Mr. KING. Aye. 

The CLERK. Mr. King, aye. Mr. Feeney? 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney, aye. Mr. Franks? 

Mr. FRANKS. Aye. 

The CLERK. Mr. Franks, aye. Mr. Gohmert? 

Mr. GOHMERT. Aye. 

The CLERK. Mr. Gohmert, aye. Mr. Conyers? 

Mr. CONYERS. No. 

The CLERK. Mr. Conyers, no. Mr. Berman? 

Mr. BERMAN. No. . 

The CLERK. Mr. Berman, no. Mr. Boucher? 

Mr. BOUCHER. No. 

The CLERK. Mr. Boucher, no. Mr. Nadler? 

Mr. NADLER. No.. 

The CLERK. Mr. Nadler, no.. Mr. Scott? 

Mr. SCOTT. No. 

The CLERK. Mr. Scott, no. Mr. Watt? 

Mr. WATT. No. 

The CLERK. Mr. Watt, no. Ms Lofgren? 

Ms. LOFGREN. No. 

The CLERK. Ms. Lofgren, no. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

Ms. WATERS. No. 

The CLERK. Ms. Waters, no. Mr. Meehan? 

[No response.] 

284

The CLERK. Mr. Delahunt? 

Mr. DELAHUNT. No. 

The CLERK. Mr. Delahunt, no. Mr. Wexler. 

Mr. WEXLER. No. 

The CLERK. Mr. Wexler, no. Mr. Weiner? 

Mr. WEINER. No. 

The CLERK. Mr. Weiner, no. Mr. Schiff? 

Mr. SCHIFF. No. 

The CLERK. Mr. Schiff, no. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. No. 

The CLERK. Ms. Sa ́nchez, no. Mr. Van Hollen? 

Mr. VAN HOLLEN. No. 

The CLERK. Mr. Van Hollen, no. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. No. 

The CLERK. Ms. Wasserman Schultz, no. Mr. Chairman? 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman, aye. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their vote. The gentleman from Illinois, Mr. Hyde? 

Mr. HYDE. Aye. 

The CLERK. Mr. Hyde, aye. 

Chairman SENSENBRENNER. The gentleman from South Carolina, 

Mr. Inglis? 

Mr. INGLIS. Aye. 

The CLERK. Mr. Inglis, aye. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote. If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 23 ayes and 15 noes. 

Chairman SENSENBRENNER. And the motion to reconsider is 

agreed to. The question now occurs on agreeing to the amendment 

offered by the gentlewoman from California, Ms. Lofgren, relative 

to habeas corpus. 

Those in favor will say aye. Opposed, no? 

The noes appear to have it. The noes have it. 

Ms. LOFGREN. Recorded vote please, Mr. Chairman. 

Chairman SENSENBRENNER. Recorded vote will be ordered. Those 

in favor of the Lofgren Amendment will as your names are called 

answer aye. Those opposed, no, and the clerk will call the roll. 

The CLERK. Mr. Hyde? 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

[No response.] 

The CLERK. Mr. Goodlatte? 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

285

Mr. CANNON No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

Mr. BACHUS. No . 

The CLERK. Mr. Bachus, no. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. Mr. Boucher? 

Mr. BOUCHER. Aye. 

The CLERK. Mr. Boucher, aye. Mr. Nadler? 

Mr. NADLER. Aye.. 

The CLERK. Mr. Nadler, aye.. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

[No response.] 

The CLERK. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler. 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. Mr. Weiner? 

[No response.] 

The CLERK. Mr. Schiff? 

Mr. SCHIFF. Aye. 

286

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their vote. The gentleman from California, Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote. If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 14 ayes and 23 noes. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. Are there further amendments? Are there further amendments? 

The gentleman from California, Mr. Schiff. 

Mr. SCHIFF. Mr. Chairman, I have an amendment numbered 82 

at the desk. 

Chairman SENSENBRENNER. The clerk will report amendment 

number 82. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Schiff of 

California. At the end of the bill, add the following new section: 

Section. Obligation of All Amounts in Crime Victims Funds. Section 

1402 of the Victims of Crime Act of 1984, 42 U.S.C. 10601, is 

amended by adding at the end the following——

Mr. SCHIFF. Mr. Chairman, I’d request that the amendment be 

deemed as read. 

Mr. SMITH. Mr. Chairman, I reserve a point of order. 

Chairman SENSENBRENNER. Well, a point of order is reserved by 

the gentleman from Texas. Without objection, the amendment is 

considered as read, subject to the point of order reserved, and the 

gentleman from California is recognized for 5 minutes. 

[The amendment of Mr. Schiff follows:] 

287

1

H.L.C.

AMENDMENT TO H.R. ll

OFFERED BY MR. SCHIFF OF CALIFORNIA

At the end of the bill, add the following new section:

1 SEC. ll. OBLIGATION OF ALL AMOUNTS IN CRIME VIC2 TIMS FUND.

3 Section 1402 of the Victims of Crime Act of 1984

4 (42 U.S.C. 10601) is amended by adding at the end the

5 following new subsection:

6 ‘‘(h) OBLIGATION OF ALL FUNDS.—

7 ‘‘(1) IN GENERAL.—Except as otherwise specifi8 cally provided in this Act (including the emergency

9 reserve referred to in subsection (d)(5)), the Direc10 tor shall ensure that all sums in the Fund in a fiscal

11 year are in fact obligated in the subsequent fiscal

12 year.

13 ‘‘(2) NOT TO BE SUPERSEDED EXCEPT BY SPE14 CIFIC REFERENCE.—A provision of law may not be

15 construed as modifying or superseding the provisions

16 of paragraph (1) unless that provision of law—

17 ‘‘(A) specifically refers to this subsection;

18 and


3199AA.AAB
288

2

H.L.C.

1 ‘‘(B) specifically states that such provision

2 of law modifies or supersedes the provisions of

3 this subsection.’’.


3199AA.AAC
289

Mr. SCHIFF. I thank the Chairman. Section 621 of the PATRIOT 

Act allow the Department of Justice to establish a $50 million antiterrorism emergency reserve for supplemental grants to compensate and assist victims of terrorism or mass violence. 

It also removed the otherwise applicable caps on the amounts 

transferred to the Victims of Crime Act Fund in response to the 

terrorist acts of September 11th. 

The Victims of Crime Act Fund is an important part of the effort 

to aid those affected by terrorism and crime more generally. The 

trust fund is composed of criminal fines, forfeited bail bonds, penalty fees and special assessments collected by U.S. Attorneys offices, courts, and the Federal Bureau of Prisons. 

These dollars come from Federal criminals. They do not come 

from taxpayers. 

Currently, this fund is the only Federal program that provides 

support services to victims of all types of crimes. 

The PATRIOT bill removed some of the caps, but not all of the 

caps. This would remove the final remaining caps so that more of 

this funding could be distributed. This is very similar to a measure, 

bipartisan bill, introduced by Rob Simmons of Connecticut that as 

23 bipartisan co-sponsors. It is plainly germane to the provisions 

that were amended in the PATRIOT bill that lifted some of the 

caps. This lifts the remaining caps. And it assures that more of this 

money will go out to victims more expeditiously. 

In the last couple years, the amount of money available to states has been capped at $500 million despite collections of over a billion 

dollars. So this I think is a completion of a partial effort made in 

the PATRIOT bill that will more speedily provide support to victims of other terrorist acts other than September 11th, as well as 

the victims of crime generally. And I’d be happy to yield back the 

balance of my time. 

Chairman SENSENBRENNER. Does the gentleman from Texas insist on his point of order? 

Mr. SMITH. Mr. Chairman, I do insist on a point of order. 

Chairman SENSENBRENNER. The gentleman will state his point of 

order. 

Mr. SMITH. Mike is working here. Okay. 

Mr. Chairman, the reason I feel that this particular amendment 

is non-germane is simply because the subject, which is crime victims fund, while it’s in the PATRIOT Act, is not under any of the 

provisions that we are considering here today. And under Rule 16 

of the House Rules, amendments that differ in subject from the 

provisions under consideration are not considered germane. And for 

that reason, I would insist on my point of order. 

Mr. SCHIFF. Mr. Chairman, may I be heard on the point of order? 

Will the gentleman——

Chairman SENSENBRENNER. The gentleman from California. 

Mr. SCHIFF. This is a reauthorization of the PATRIOT bill. And 

I know that the subject of the base bill pertains to certain of the 

PATRIOT bill provisions, but this crime victims fund was amended 

by the PATRIOT Act that we are in effect reauthorizing today with 

this legislation. 

This is the PATRIOT and Intelligence Reform Reauthorization 

Act of 2005. And unless the gentleman has any objection to the 

merits, considering it it amends the same section and in the same 

290

fashion in terms of lifting caps. I think it is both germane and good 

policy supported by 23 members of the House, both Democrats and 

Republicans. 

Chairman SENSENBRENNER. The Chair is prepared to rule. Line 

3 of the amendment offered by the gentleman from California, Mr. 

Schiff, expressly states that the Victims of Crime Act of 1984 is 

amended by language in his amendment. The Victims of Crime Act 

is not the subject matter of the bill before us that relates to the 

PATRIOT Act, and, as a result, the gentleman from Texas’ point 

of order is sustained. 

Are there other amendments? The gentleman from North Carolina, Mr. Watt. 

Mr. WATT. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

Mr. WATT. Watt-Waters. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Watt and 

Ms. Waters. Strike Subsection C of Section 8, and insert the following: (C), non-disclosure. Section 501(d) of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1861(d) is——

Mr. WATT. Mr. Chairman, I ask unanimous consent the amendment be considered as read. 

Chairman SENSENBRENNER. Without objection, so ordered. The 

gentleman is recognized for 5 minutes. 

[The amendment of Mr. Watt and Ms. Waters follows:] 

291

1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MR. WATT AND MS. WATERS

Strike subsection (c) of section 8 and insert the following:

1 (c) NONDISCLOSURE.—Section 501(d) of the Foreign

2 Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(d))

3 is amended to read as follows:

4 ‘‘(d) NONDISCLOSURE.—

5 ‘‘(1) IN GENERAL.—No person who receives an

6 order under subsection (c) shall disclose to any per7 son that the Federal Bureau of Investigation has

8 sought or obtained tangible things under this section

9 for 180 days after receipt of such order.

10 ‘‘(2) EXCEPTION.—A person who receives an

11 order under subsection (c) may disclose that the

12 Federal Bureau of Investigation has sought or ob13 tained tangible things under this section to—

14 ‘‘(A) those persons to whom disclosure is

15 necessary in order to comply with an order

16 under this section; or

17 ‘‘(B) an attorney in order to obtain legal

18 advice regarding such order.


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2

H.L.C.

1 ‘‘(3) EXTENSION.—The Director of the Federal

2 Bureau of Investigation, or a designee of the Direc3 tor (whose rank shall be no lower than Assistant

4 Special Agent in Charge), may apply for an order

5 prohibiting disclosure that the Federal Bureau of In6 vestigation has sought or obtained access to tangible

7 things under this section for an additional 180 days.

8 ‘‘(4) JURISDICTION.—An application for an

9 order pursuant to this subsection shall be made to—

10 ‘‘(A) a judge of the court established under

11 section 103(a); or

12 ‘‘(B) a United States Magistrate Judge

13 under chapter 43 of title 28, who is publicly

14 designated by the Chief Justice of the United

15 States to have the power to hear applications

16 and grant orders for the production of tangible

17 things under this section on behalf of a judge

18 of the court established under section 103(a).

19 ‘‘(5) APPLICATION CONTENTS.—An application

20 for an order pursuant to this subsection must state

21 specific and articulable facts giving the applicant

22 reason to believe that disclosure that the Federal

23 Bureau of Investigation has sought or obtained tan24 gible things under this section will result in—


3199BB.AAC
293

3

H.L.C.

1 ‘‘(A) endangering the life or physical safety

2 of any person;

3 ‘‘(B) flight from prosecution;

4 ‘‘(C) destruction of or tampering with evi5 dence;

6 ‘‘(D) intimidation of potential witnesses; or

7 ‘‘(E) otherwise seriously endangering the

8 national security of the United States by alert9 ing a target, a target’s associates, or the for10 eign power of which the target is an agent, of

11 the Government’s interest in the target.

12 ‘‘(6) STANDARD.—The judge may issue an ex

13 parte order pursuant to this subsection if the judge

14 determines there is reason to believe that disclosure

15 that the Federal Bureau of Investigation has sought

16 or obtained access to tangible things under this sec17 tion will result in—

18 ‘‘(A) endangering the life or physical safety

19 of any person;

20 ‘‘(B) flight from prosecution;

21 ‘‘(C) destruction of or tampering with evi22 dence;

23 ‘‘(D) intimidation of potential witnesses; or

24 ‘‘(E) otherwise seriously endangering the

25 national security of the United States by alertVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00297 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1

3199BB.AAD
294

4

H.L.C.

1 ing a target, a target’s associates, or the for2 eign power of which the target is an agent, of

3 the Government’s interest in the target.

4 ‘‘(7) RENEWAL.—An order under this sub5 section may be renewed for additional periods of up

6 to 180 days upon another application meeting the

7 requirements of paragraph (5) and a determination

8 by the court that the circumstances described in

9 paragraph (6) continue to exist.’’.


3199BB.AAE
295

Mr. WATT. Thank you, Mr. Chairman. This amendment deals 

with Section 215 of the PATRIOT Act, which the Chairman’s mark 

improves, and we’re trying to improve it further. Section 215 expanded the FBI’s authority to obtain business records, including 

records from libraries and the bookstores under the Foreign Intelligence Surveillance Act. 

For example, the Washington Post reported that the FBI 

agents—that FBI agents asked libraries for a list of everyone who 

checked out a book on Osama bin-Laden. Any person, any child 

simply trying to educate themselves about the attacks of September 11 could become a target of such an inquiry. Not only may 

American citizens become unsuspecting targets of a Section 215 

order, those receiving the order, including bookstores and libraries, 

are required to comply and may not disclose the specifics or contents of the order. 

The Chairman’s bill makes some improvements. It amends Section 215 to allow the recipient of the order to challenge the order 

and clarifies that the recipient may consult with counsel or those 

necessary to comply with the order, and sets up a judicial review 

process and standards for issuing the order. And Mr. Flake’s 

amendment earlier dealt with that consultation process, and improved on that. 

My amendment would make additional and necessary improvements by doing two additional things. First, it would require the 

government to apply for a gag order establishing why it is necessary for the recipient of an order and their counsel to be prohibited from divulging the existence or content of the order. 

In instances where the government believes a gag order is needed, the burden is placed where it should be—on the government. 

If the government can establish that disclosure of such information might tip off possible terrorist suspects that they are under investigation or if officers believe disclosure would endanger someone, the government could apply for a gag order. 

Second, my amendment places a 180-day time limit on the gag 

order, which is renewable upon a showing that the order remains 

necessary. 

This would allow the government to obtain necessary information 

to combat terrorism while providing transparency to the public 

without jeopardizing national security. 

Mr. WATT. The government should not and will not, if my 

amendment is accepted, be able to completely shield from public 

view its use of this powerful tool. The public must be able to speak 

out when abuses occur and government secrecy all too often leads 

to government abuse. 

This amendment helps protect us from that kind of abuse. I ask 

my colleagues to support the amendment, and I yield back the balance of my time. 

Chairman SENSENBRENNER. The gentleman from Indiana, Mr. 

Pence, is recognized for 5 minutes. 

Mr. PENCE. I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. PENCE. Thank you, Mr. Chairman. Mr. Chairman, I would 

oppose the amendment offered by Mr. Watt and Ms. Waters. 

296

While I support clarifying Section 215 to allow for a recipient to 

disclose receipt of a Section 215 order to an attorney, this provision 

inappropriately places an artificial time limit on non-disclosure 

generally and places the burden on the government to demonstrate 

that adverse effects will occur upon disclosure when seeking an extension on that period. Essentially, it flips the burden of proof in 

these cases. And given the nature of national security investigations, the time limit imposed by this amendment, I would argue, 

Chairman, is with respect unrealistically short. Investigations of 

terrorist organizations, for example, can last years, and requiring 

notice of a disclosure under Section 215 would require investigators 

essentially to tip off suspects, which could enable them and their 

associates to go into hiding, to flee to change their plans, and even 

accelerate their plots. 

And I would yield back the balance of my time. 

Chairman SENSENBRENNER. The question is on the Watt Amendment. 

Ms. WATERS. Mr. Chairman? 

Chairman SENSENBRENNER. The gentlewoman from California, 

Ms. Waters. 

Ms. WATERS. I move to strike the last word. 

Chairman SENSENBRENNER. The gentlewoman is recognized for 5 

minutes. 

Ms. WATERS. I have co-authored this amendment because I think 

it’s very important. Among the things that have been discussed, 

this amendment allows the recipient of a Section 215 order at least 

to consult with their lawyer, allowing the recipients to speak to 

their lawyers, injects a vital due process protection that is put in 

place that helps to ensure that Section 215 authority is not abused 

without any mechanism for recourse. 

Mr. Chairman, in its current form, Section 215 of the PATRIOT 

Act allows the FBI to seize and search any records on any person 

they chose as long as they can show it is relevant to a terrorism 

investigation. 

Moreover, the recipient of Section 215 orders are subject to an 

automatic gag order prohibiting them from telling anyone about 

the search or seizure, including his or her lawyer. 

Mr. Chairman, this automatic gag order prevents the recipient of 

a Section 215 order from being able to question the order at all. 

The recipient would have to risk criminal sanctions to simply ask 

their lawyer whether the order is legal or to be advised of their 

rights under the order. 

This secrecy leaves Section 215 open for government abuse and 

exploitation. For example, under Section 215 orders, the government can secretly monitor a public library’s computers and be able 

to monitor who looks at what Internet sites, and who has checked 

out specific books. This can all be conducted without giving anybody notice that they’re under surveillance. This gives the government too much secret surveillance power and eliminates any recourse for recipients of Section 215 orders. 

Mr. Chairman, recipients of orders to produce records should 

have a right to be able to consult with their lawyers to be advised 

of their rights. And the government should not be allowed to conduct investigations in secret, for secret investigations all too often 

lead to government abuse. 

297

Therefore, I would ask my colleagues to please support the WattWaters Amendment, to place some commonsense restrictions on 

Section 215, and I yield back the balance of my time. 

Mr. LUNGREN. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Lungren. 

Mr. LUNGREN. Mr. Chairman, I must not be reading the bill that 

you introduced, because I note in the bill that you introduced you 

have provided an opportunity for people to disclose to their attorney, and I recall we adopted Mr. Flake’s amendment, which made 

it very specific as to what one could do with respect to talking to 

their lawyer, not only to respond to this, but also to challenge it. 

And if that’s the proper reading of Mr. Flake’s amendment, I don’t 

understand the comments of the gentlelady from California that we 

just heard, nor the purpose of the amendment that we have here, 

if the purpose of the amendment we have now before us is to allow 

people to disclose to their attorney, which on its face is in the bill 

that’s before us. 

I yield back the balance of my time. 

Mr. CONYERS. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Michigan, Mr. 

Conyers. 

Mr. CONYERS. I rise to support the amendment of the gentleman 

from North Carolina. And I merely want to point out that the objective of this bill is to make discretionary the issuing of the gag 

order rather than it being automatically applying under Section 

215 to everybody, and so it wouldn’t be just a matter of whether 

the attorney could be consulted, but it would cover libraries that 

can’t let their patrons know that the government has asked for information or a service provider cannot let its customer know that 

his or her records have been seized. And all we’re saying in this 

amendment is not to place a gag order automatically under 215; 

and that the government would have to prove to then authorizing 

judge why a gag order is necessary. 

And it’s in that sense that I think this is an excellent amendment and I support it without question. I return my time. 

Chairman SENSENBRENNER. The gentleman from Arizona, Mr. 

Flake. 

Mr. FLAKE. Let me just reiterate what Mr. Lungren mentioned. 

My amendment sought to correct that, or just to clarify within the 

law that you can consult an attorney not just to respond to the 

case, but also to—with anything with respect to the case. So I 

think it’s fairly clear that the subject of any action has the ability 

now to consult a lawyer. 

Ms. WATERS. Will the gentleman yield? 

Mr. FLAKE. Yes. 

Ms. WATERS. I have just been handed the amendment by you, 

Mr. Flake, which does refer to Section 501(d), and I suppose as it 

is written, it would take care of my concerns and my concerns that 

would linger with this would have to do simply with the gag order. 

Mr. FLAKE. Thank you. 

Ms. WATERS. Thank you very much. 

Mr. FLAKE. I yield back. 

Mr. SCOTT. Mr. Chairman? 

298

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Scott. 

Mr. SCOTT. Mr. Chairman, the point has been made that this 

changes the presumption. The presumption is always that you notify someone that you’re searching their property. It’s the only way 

that you’re going to have any sunshine on the practice, whether or 

not you’re in the right place, whether or not you’re overly broad. 

This would allow a gag order to remain in effect for 180 days, and 

you can extend it indefinitely if you can show cause. Otherwise, 

you have a permanent gag order operating in secret. I think this 

is an appropriate balance, and I would hope that we would adopt 

the amendment, and I yield to the gentleman from North Carolina. 

Mr WATT. Let me just make this point. I appreciate the gentleman yielding. I think we all are probably getting tired here because we’re ceasing to listen to each other. The amendment is 

about whether a gag order goes into effect without anything or 

whether the government needs to get a court authorization for a 

gag order. That’s the only thing this amendment is about. 

The 180 days is there as a presumptive time, but if the government needs more time than 180 days, all it has got to do is go to 

the court and say that. The thing that’s troubling about this discussion is that the very people who are always—have always expressed so much concern about the size and power of the government now seem to be defending the exercise and size and power of 

the government against individual citizens. I thought—I really 

thought you all were really about downsizing government and 

downsizing the power of government. We’re not trying to encourage 

terrorism. We’re trying to create a balance between the government—what the government can do without saying anything to 

anybody, without notifying anybody. All we’re trying to do set up 

a counterbalance to something that is unprecedented. This is unprecedented stuff that our government could go in and look at our 

library records, and for you all to sit here and defend the government against that kind of intrusion, against even having to ask a 

court to evaluate whether any kind of disclosure of that clandestine, quiet, secretive action by the government should be exposed 

to the light of day seems to me just to be unbelievable. 

I’m beginning to think you all have lost your bearings here. I—

well, I thank the gentleman for yielding. 

Mr. SCOTT. Mr. Chairman, reclaiming my time, I just to remind 

everybody that the person whose privacy is being invaded will 

never know that their privacy is being invaded, even if secrecy is 

not necessary. All this amendment does is after 180 days let people 

know that the records were obtained and if secrecy is necessary, let 

the government say that secrecy is necessary. 

I mean there’s—I yield back. 

Chairman SENSENBRENNER. The question is on the amendment 

offered by the gentleman from North Carolina, Mr. Watt. 

Those in favor will say aye. Opposed, no. 

Noes appear to have it. The noes——

Recorded vote will be ordered. Those in favor of the Watt Amendment will as your names are called answer aye; those opposed, no, 

and the clerk will call the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

299

The CLERK. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. Mr. Goodlatte? 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. Mr. Chabot? 

[No response.] 

The CLERK. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

Mr. CANNON No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

Mr. BACHUS. No . 

The CLERK. Mr. Bachus, no. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye.. 

The CLERK. Mr. Nadler, aye.. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms Lofgren? 

300

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler. 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

Mr. SCHIFF. No. 

The CLERK. Mr. Schiff, no. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their vote. The gentleman from Illinois, Mr. Hyde. 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote. If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 13 aye and 23 noes. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. Are there further amendments? 

The gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

Mr. SCOTT. Mr. Scott 34. It’s page 9, line 11. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Scott of 

Virginia. 

Page 9, line 11, strike the close quotation mark and the second 

period. Page 9, after line 11, insert the following: 4) a person who 

prevails on a challenge of the legality of an order under this subsection is entitled to reasonable attorneys fees, if any, incurred by 

the person in pursuing the challenge. 

[The amendment of Mr. Scott follows:] 

301

1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MR. SCOTT OF VIRGINIA

Page 9, line 11, strike the close quotation mark and

the second period.

Page 9, after line 11, insert the following:

1 ‘‘(4) A person who prevails on a challenge of the le2 gality of an order under this subsection is entitled to rea3 sonable attorney’s fees, if any, incurred by the person in

4 pursuing the challenge.’’.


3199CC.AAB
302

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. Mr. Chairman, page 7, 

line 16, purports to give a person who gets one of these orders the 

right to challenge it. What this amendment would do is if he can 

get through all of the legalities and actually wins, he ought to be 

able to get his attorneys fees. 

Now, let’s remember what’s going on here. You get a library or 

somebody who gets an order to give up somebody’s private material, if they’re going to contest it, if it is obviously overly intrusive 

and not necessary, are they going to incur $10,000, $20,000, 

$25,000 worth of legal expenses in order to contest it for someone 

else when they can’t tell the other person that they’re actually 

going to go through this on their behalf or are they just going to 

comply with the order and give up individual private information 

that shouldn’t have been asked for. 

All this says if you can get through all of the legal mumbo jumbo 

and actually win the case, if you have a slam dunk, that you can 

afford to bring it. 

Otherwise, the fact that you have the paper right to bring the 

case is ridiculous because you can never do it because you can’t afford it. 

And I would hope that we would at least allow attorneys fees for 

that one in a million case that can actually bring a case and win 

it so that they could—would actually bring the case if the warrant 

was not necessary. 

I yield back. 

Chairman SENSENBRENNER. The gentleman from Texas, Mr. 

Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. I’d just like to simply 

offer—it’s a little vague, since—it says a person who prevails on a 

challenge. Does that mean you win one challenge and you lose a 

whole bunch. But I would offer this—and I can only speak for myself personally—but if the gentleman from Virginia and those 

across the aisle would agree to have a lose or pay situation in tort 

cases, you’ve got my vote on your amendment right here. And I’ll 

yield back my time. 

Mr. SCOTT. If the gentleman would yield? 

Mr. GOHMERT. Yeah. I’ve yielded back my time to the Chairman. 

Chairman SENSENBRENNER. The question is on the Scott Amendment. Those in favor will say aye. Opposed, no. 

Noes appear to have it. The noes have——

Recorded vote will be ordered. Those in favor of the Scott Amendment will as your names are called answer aye. Those opposed, no. 

And the clerk will call the roll. 

The CLERK. Mr. Hyde? 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

[No response.] 

The CLERK. Mr. Goodlatte? 

Mr. GOODLATTE. No. 

303

The CLERK. Mr. Goodlatte, no. Mr. Chabot? 

[No response.] 

The CLERK. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

Mr. CANNON No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

Mr. BACHUS. No . 

The CLERK. Mr. Bachus, no. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye.. 

The CLERK. Mr. Nadler, aye.. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

304

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler. 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their vote. The gentleman from California, Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote. If not, the clerk will report. 

The CLERK. Mr. Chairman, I have 14 ayes and 22 noes. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. Are there further amendments. 

Mr. SCHIFF. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Schiff. 

Mr. SCHIFF. Mr. Chairman, I have an amendment at the desk, 

numbered 75. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Schiff. 

Amend Section 4 to read as follows: Section 4, Extension of Sunset 

Provision relating to Individual Terrorists as Agents of Foreign 

Powers. Subsection B of Section 6001 of the Intelligence Reform 

and Terrorism Prevention Act——

[The amendment of Mr. Schiff follows:] 

305

1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MR. SCHIFF

Amend section 4 to read as follows:

1 SEC. 4. EXTENSION OF SUNSET PROVISION RELATING TO

2 INDIVIDUAL TERRORISTS AS AGENTS OF

3 FOREIGN POWERS.

4 Subsection (b) of section 6001 of the Intelligence Re5 form and Terrorism Prevention Act of 2004 (Public Law

6 108–458; 118 Stat. 3742) is amended to read as follows:

7 ‘‘(b) SUNSET.—(1) Except as provided in paragraph

8 (2), the amendment made by subsection (a) shall cease

9 to have effect on December 31, 2008.

10 ‘‘(2) With respect to any particular foreign intel11 ligence investigation that began before the date on which

12 the amendment made by subsection (a) ceases to have ef13 fect, such amendment shall continue in effect.


3199DD.AAB
306

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. And the gentleman from California will be recognized for 5 minutes. 

Mr. SCHIFF. Mr. Chairman, this provision is fairly straightforward. It provides a 3-year sunset for the so-called lone wolf provision. And I want to explain why I think this is different in kind 

than the earlier debate we’ve had on sunsets. And that is the authority to go after loan wolves was just recently enacted in December of last year, so we haven’t had the same kind of track record 

we have had with other sections of the PATRIOT bill. 

The loan wolf provision eliminates the requirement in FISA that 

surveillance or searches be carried out only against persons suspected of being agents of foreign powers or terrorist organizations. 

It was an attempt to fix a loophole potentially that would allow or 

preclude us from going after lone terrorists where we couldn’t show 

an affiliation to an international terrorist group. 

But there have been a number of concerns raised on this Committee with the application of this provision to individuals where 

you can’t show a connection to a foreign government or an international terrorist organization. In fact, a compromise proposal 

based on language of Senator Feinstein was offered by Mr. Berman 

in the 9/11 bill, which I believe was adopted with bipartisan support in this Committee. 

Rather than take that approach which was one of presuming 

that a lone terrorist was acting in concert with international organization or with another government, rather than take that approach, it might be simpler and cleaner to provide a sunset in a 

reasonable period of time—3 years—so that we’ll have 4 years of 

experience in total so that we can evaluate and make sure that this 

is only being applied in the right circumstances. 

It’s not the intention of FISA to go after people who want to commit acts of domestic terrorism, like blowing up a Federal building 

over hostility to the government or to tax policy or what not. And 

want to make sure that this lone wolf provision is being appropriately applied. 

So this would basically give the lone wolf provision the same sunset that the rest of the PATRIOT bill had, but because this is a late 

edition, we don’t have the same track record with it. And I would 

urge my colleagues’ support. 

Chairman SENSENBRENNER. Does the gentleman yield back? 

Mr. SCHIFF. Yes, Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Issa? 

Mr. ISSA. Thank you, Mr. Chairman. And I rise in opposition to 

this——

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. ISSA. Thank you, Mr. Chairman. The provisions—the lone 

wolf provisions in the original version of H.R. 10 is virtually identical to the lone wolf provision contained in Senate 113, which was 

passed in the Senate by a 90 to 4 vote, and was co-sponsored by 

Senators Biden and Schumer. I do appreciate the gentleman from 

California’s belief that there hasn’t been enough time or that perhaps this could be abused. But I think it’s clear that with London 

bombing just days ago, on 7/7, that we’re going to continue to have 

307

lone wolves. We’re going to continue to have individuals who cannot either at the time before or even immediately following a crime 

necessarily be linked to an international terrorist group, and that, 

in fact, this legislation, as it is, is important to be left as it is. 

There has been no case for sunsetting because there—although you 

mentioned concerns, there have been no examples of abuse or anything inappropriate under the current law. 

And I would suggest that if you have a reform of the current law, 

this is an appropriate time to bring it, but not simply to sunset 

something for which we have not yet discovered a flaw. 

I’d yield to the gentleman from California for a question. 

Mr. SCHIFF. I appreciate the gentleman yielding. Did the gentleman support the 9/11 bill? The amendment offered by Mr. Berman, which would have modified this section to provide additional 

protection? I think it was supported on a bipartisan basis. If it was 

good then, it should be good now. 

And, in fact, this is less——

Mr. BERMAN. It was good then. 

Mr. SCHIFF. —restrictive. 

Mr. BERMAN. It was good then. 

Mr. ISSA. Mr. Berman is assuring us, reclaiming my time, that 

it was good then. You know, this is the—we are existing with the 

law today. What you’re proposing to do is to sunset rather than potentially amend. I mean we’re glad—I’m happy to talk about 

amendments. That’s what we’re here for. But I’m going to be—resist and ask my colleagues on both sides of the aisle to resist simply kicking the can down the road 3 more years in case we discover 

something. I believe that appropriate and routine oversight now is 

what we’re going to have on this. 

Chairman SENSENBRENNER. Would the gentleman yield back? 

Mr. ISSA. Yeah. I yield back. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Berman? 

Mr. BERMAN. I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. BERMAN. I think this is a very good amendment. Mr. Schiff 

has explained it well. But I want to just remind my colleagues on 

the Committee and the lone wolf—it is certainly true that there 

can be this lone operator out there and engaged in terrorist acts 

or planning terrorist attacks so we want to have the tools to deal 

with that person. But remember the fundamental structure of all 

this. It’s all base on a FISA Court where there is a lower threshold 

for getting surveillance warrants and all these different things, not 

probable cause that a crime has been committed. 

And the only reason it—the real reason why it’s been considered 

to be constitutional is because it’s geared to foreign powers or 

agents of foreign powers. 

Almost by definition, the lone wolf is not and can’t be an agent 

of a foreign power, ’cause he’s a lone wolf. 

Mr. ISSA. Would the gentleman yield? 

Mr. BERMAN. Yes. 

Mr. ISSA. You know, I don’t want to be the ultimate conspiracy 

theorist, but was Lee Harvey Oswald, in his trips back and forth 

to Cuba, a lone wolf or was he an agent of foreign government? We 

308

don’t always know that. We have a good-faith belief that somebody 

may be an agent of a foreign government. And I certainly think 

that on the next amendment which I understand you are going to 

offer, we can have further discussion. But when it comes to the 

sunsetting, I think we are dealing with sunsetting here, not with 

the substance of your amendment. 

Mr. BERMAN. Well, but, I mean, the same logic that we debated 

how long the sunset should be certainly applies to this as well. But 

I wasn’t planning to offer the amendment, and you haven’t said 

enough to make me think I should rethink my position yet. 

Mr. ISSA. I will be glad not to have you rethink your position. 

Mr. BERMAN. But look, let me just—the constitutional requirement that the lesser standards and privacy protections authorized 

for FISA surveillance pass constitutional is that they are limited to 

use against foreign powers and their agents. There is a constitutional question here. I had offered an amendment before that created a presumption that the FISA court could apply, a presumption 

that the lone wolf was an agent of a foreign power. That was adopted, and then somehow disappeared. 

But, so particularly where you have something that is constitutionally at least arguably questionable here, the logic of a sunset 

is even greater because it imposes a kind of review and helps—becomes a forcing mechanism for us to look at a way to salvage a provision which, in the context of what we want to do on terrorism, 

makes sense. 

And so I think you ought to give Mr. Schiff the sunset clause 

here, and then let’s create a process that sort of empowers us to—

or that forces us to figure out the right way. Maybe it is not the 

presumption. Maybe there is something else we can do to deal with 

the constitutional questions involved in letting this kind of surveillance take place against someone who might not have any connection to a foreign power or be an agent of a foreign power. 

Mr. DELAHUNT. Would the gentleman yield? 

Mr. ISSA. Sure. 

Mr. DELAHUNT. I wonder if the gentleman from California and 

the Chairman would consider, if Mr. Schiff was willing to, by unanimous consent, amend his amendment and bring it in line in terms 

of the sunset with the other two provisions that Mr. Lungren’s 

amendment made part of the bill today, that would give us three 

provisions. And particularly, given the arguments that both Mr. 

Berman made and I think Mr. Schiff accurately made, it would 

give us a period of time to test the——

Chairman SENSENBRENNER. The gentleman’s time has expired. 

The question is on the amendment offered by the gentleman from 

California, Mr. Schiff. Those in favor will say aye? Opposed, no? 

The noes appear to have it. 

Mr. SCHIFF. Mr. Chairman, I request a recorded vote. 

Chairman SENSENBRENNER. A recorded vote will be ordered. 

Those in favor of the Schiff amendment will, as your names are 

called, answer aye; those opposed, no. And the clerk will call the 

roll. 

The CLERK. Mr. Hyde? 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. Mr. Coble? 

[No response.] 

309

The CLERK. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. Mr. Goodlatte? 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. Mr. Chabot? 

[No response.] 

The CLERK. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

[No response.] 

The CLERK. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

310

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their vote? The gentleman from North Carolina, Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Chairman SENSENBRENNER. The gentleman from Arizona, Mr. 

Flake. 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 14 ayes and 22 noes. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. 

Are there further amendments? 

Mr. NADLER. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Nadler. 

Mr. NADLER. Thank you, Mr. Chairman. 

I have an amendment at the desk. It is labeled Nadler-Jackson 

Lee-Waters. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Nadler, Ms. 

Jackson Lee, and Ms. Waters. Add at the end the following: Sec. 

lll. Limitation on Time to Delay Notice of Search Warrants. 

Section 3103a(b)(3) of title 18, United States Code, is amended by 

striking ‘‘a reasonable period’’ and inserting ‘‘30 calendar days, 

which period, upon application of the Attorney General, the Deputy 

Attorney General, or an Associate Attorney General, may thereafter be extended by the court for additional periods of up to 60 calendar days.’’

[The amendment of Mr. Nadler follows:]

311


3199EE.eps
312

Mr. SMITH. Mr. Chairman, I reserve a point of order. 

Chairman SENSENBRENNER. A point of order has been reserved 

by the gentleman from Texas. 

The gentleman from New York, Mr. Nadler, is recognized for 5 

minutes, subject to the point of order reserved. 

Mr. NADLER. Thank you, Mr. Chairman. 

This is a very simple amendment. Section 213 of the PATRIOT 

Act allows the FBI to conduct secret searches—it is the so-called 

sneak-and-peek section. It allows the FBI to conduct secret 

searches in any investigation, including run-of-the-mill criminal investigations, and indefinitely delay notice to the target of the 

search. 

Right now, they can delay notice for a reasonable period, which 

can be anything. And what this amendment says is it should be 30 

calendar days. However, upon application to the Attorney General, 

the Deputy Attorney General, or an Associate Attorney General, it 

can thereafter be extended by the court—I am sorry, an application 

‘‘by’’ the Attorney General or his deputies—can be extended by the 

court for additional periods of up to 60 calendar days. 

Now, those can be any number of additional 60 calendar days. 

And it is very simple. If you are going to conduct a search of a person’s home or business, there may be a good reason not to tell them 

afterwards. There may be a good reason that, if you told them, it 

would result in destruction of evidence or in flight from the jurisdiction or in death or something, and therefore you don’t want to 

tell them. But it is an invasion of liberty to be able to—it is an invasion of our traditions to be able to conduct a search without telling them afterward. So this simply says after a certain period of 

time, 30 days, if you think that you still can’t tell them, you tell 

the court why. And then 60 days and 60 days and 60 days. It is 

simply giving the court the authority to limit how long the lack of 

notification after a search of someone’s premises can be. 

Now, the PATRIOT Act extended sneak-and-peeks from where 

they were to cases where the Fourth Amendment is applicable and, 

frankly, to somewhat questionable constitutionality, this probably 

ameliorates any challenge to its constitutionality. But it is the right 

thing to do from a liberty aspect. Where you really need to keep 

that secret for any length of time, that is fine; you can do that. And 

where you shouldn’t, you have to review it every 60 days. 

So I urge the adoption of this amendment. 

Chairman SENSENBRENNER. Does the gentleman yield back? 

Mr. NADLER. Yes, he does. 

Mr. SMITH. Mr. Chairman, I will withdraw my point of order. 

Chairman SENSENBRENNER. Reservation is withdrawn. 

The gentleman from Arizona, Mr. Flake. 

Mr. FLAKE. This is with regard to the 30 calendar days you are 

asking for. 

Mr. NADLER. Thirty calendar days, and after—would the gentleman yield? 

Mr. FLAKE. No, let me explain first and then I will yield. 

Mr. NADLER. Well, I think you just asked a question. Just to answer your question. 

Mr. FLAKE. Okay, yes. 

Mr. NADLER. Thirty calendar days and 60-day extension by the 

court. 

313

Mr. FLAKE. I do have an amendment that will come up on the 

floor, if it is made in order, which would have—instead of 30 days, 

it would be 180 days. It would be the maximum time allowed now, 

and additional periods up to 90 days. 

Mr. NADLER. It would be 180 days for the first? 

Mr. FLAKE. Yes. 

Mr. NADLER. And then additional period of 90? 

Mr. FLAKE. Ninety days, yes. And I would be happy to work with 

the gentleman on an amendment. 

Mr. NADLER. Would the gentleman yield? 

Mr. FLAKE. Yes. 

Mr. NADLER. Well, first of all, I am glad to hear it was made in 

order. I didn’t know the rules——

Mr. FLAKE. No, no, I said if it is made in order. 

Mr. NADLER. Oh, if it is made in order. Well, I would certainly 

support that amendment. I think 30 and 60 is better—what did 

you say, 180 and 90? 

Mr. FLAKE. One hundred eighty and 90. 

Mr. NADLER. Well, I think 30 and 60 is better, because you ought 

to—I could support 180, but I think 30 is better. I think 60 is better to go back to courts. I would hope the gentleman would support 

this in Committee. I don’t know why we wait for the floor to do this 

if it is a good idea. 

Mr. FLAKE. I will support it anywhere. But——

Mr. NADLER. Well, I hope you support this amendment. 

Mr. FLAKE. No, no. No, I would like to support my amendment. 

And my understanding is we would like to do it on the floor. 

Chairman SENSENBRENNER. Does the gentleman yield back? 

Mr. FLAKE. I yield back. 

Chairman SENSENBRENNER. The question is on the——

Mr. SCOTT. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Scott. 

Mr. SCOTT. Mr. Chairman, this is an interesting process where 

everybody is going to have their amendments on the floor rather 

than in—subject to a hearing, subject to Subcommittee markup and 

a Committee markup. We got the bill just a few days ago. We 

haven’t had a hearing on the bill. And here we are with the rules 

people taking—I don’t know whether the Rules Committee will 

allow these amendments or not, but it is just an unusual circumstance. 

The purpose of the notice and the presumption of notice, usually 

there is an extraordinary situation that you would sneak and peek 

for a search warrant anyway. If there is a mistake, the fact that 

you have notified someone right there on the spot, they can tell you 

that you are searching the wrong house. This is a tremendous invasion. It is a constitutional right to be secure in your person and 

property. 

The amendment is reasonable. And we ought to have a debate 

on the amendment rather than just hide the ball and spring it on 

us. We don’t know what these amendments are going to look like 

on the floor, and we ought to debate it here in a fair debate. It is 

just an unusual circumstance and procedure that people—I don’t 

know what happened in the cloak room back there. But I will yield 

to the gentleman from New York. 

314

Mr. NADLER. Thank you. I would ask the gentleman from Arizona if you think it is a good idea to do—I mean, I am realistic. 

I have seen the fate of most amendments today. If you think you 

could support 180 days and 90 days, I will be happy to change this 

amendment to 180 and 90 and maybe we could get support for that 

right here. 

Mr. FLAKE. I will agree to work with the gentleman on it. This 

deserves more time, but——

Mr. NADLER. Would you support it in this Committee? 

Mr. FLAKE. No, I would prefer to go with my own amendment on 

that. 

Mr. SCOTT. Reclaiming my time. Will the gentleman offer his 

amendment now so we can see it? 

Mr. FLAKE. I am still working on it, but—on the precise language 

of it. All I have looked at, and I would have to compare it to the 

language I am working on, but I see the 30 and 60, I know that 

I have gone 180 and 90. I haven’t looked at the precise language 

other than that. I would need more time to do that. 

Mr. SCOTT. Reclaiming my time. Would the gentleman want to 

join in my complaint that we haven’t had time to consider this in 

Committee? I mean, you haven’t had time to prepare your amendment. I assume you notice that this is a rushed process. You have 

amendments you are still working on. We haven’t had Subcommittee, and here we are in Committee on a short notice. Does 

the gentleman acknowledge that this is a rushed process; you have 

not had adequate time to prepare your amendments? 

Mr. FLAKE. I would not acknowledge any such thing. We have 

had 12 hearings. You mention there has not been a hearing on the 

amendment. To my knowledge, we don’t typically call hearings on 

amendments. But on the bill, the underlying bill, we have held 12 

hearings on. This has been quite a deliberative process. 

Mr. SCOTT. Reclaiming my time. I would remind the gentleman 

that we have had no hearings on the bill. 

Mr. FLAKE. Well, we actually did have a hearing on delayed notice. 

Mr. SCOTT. Well, we have had no hearings on the bill. We have 

had hearings on the act, we have had hearings on the subjects, but 

we have not seen the bill. And that is why the gentleman is having 

trouble with his amendments. Can’t get them ready because we 

haven’t had a hearing. Now, had we had a hearing on the bill, the 

gentleman would have possibly had time to prepare an amendment 

where it could be considered in the normal process. 

I yield to the gentleman from California. 

Mr. ISSA. Thank you. And I think, to find a common agreement, 

I think it is wonderful we have a member on this side of the aisle 

who talked to you in principle, what he is looking at. It is different 

than what you are looking at by a significant amount of days. 

But——

Mr. NADLER. But we are willing to change it to those days. 

Mr. ISSA. What I would suggest is either withdraw—and I would 

suggest withdraw without prejudice—and work on it behind the 

scenes. Because at this point, I think what we agree on is we disagree on the number of days, so why have a vote? Why not get 

a——

Mr. NADLER. Would the gentleman yield? 

315

Mr. SCOTT. Reclaiming my time, I yield to the gentleman from 

New York. 

Mr. NADLER. Thank you. I think I said a few moments ago, I am 

willing to change the number of days to the same number of days 

that the gentleman mentioned a moment ago, 180 and 90. So there 

is no difference on that. I am not aware of what language there is 

here. It is simply a question of listing the number of days. 

There seems to be a determination not to do an amendment on 

this subject in Committee, but only on the floor. Now, maybe there 

is a reason for that, but it is not the——

Mr. FLAKE. Will the gentleman yield? I would like to ask unanimous consent to include in the record the chronology of the hearings that we have held on this subject. 

Chairman SENSENBRENNER. Without objection. 

[The chronology of hearings follows:]

316


3199I2A.eps
317


3199I2B.eps
318

Mr. NADLER. Reclaiming—reclaiming somebody’s time. I 

don’t——

Chairman SENSENBRENNER. The time of the gentleman from Virginia has expired. 

Mr. NADLER. Could I ask unanimous consent for an additional 2 

minutes to the gentleman’s——

Chairman SENSENBRENNER. Without objection. 

Mr. NADLER. And I assume he yields to me, since he is talking. 

I don’t have any quarrel or complaint about the fact that we had 

only 12 hearings and maybe we should have held 13. That is not 

what anybody is saying here. What we have been saying is that 

there has been no—my complaint is that we have had no time, 

really, since we saw the Chairman’s bill, which was only Friday 

night, or late Friday. And as I said at the beginning of this hearing 

back at—you know, a few hours ago, we should have had time to 

send this bill out for comment to everybody across the country, to 

the law schools, the Civil Liberties Union, the Conservative Union, 

and the libertarian groups, and get their comments and fashion 

amendments with that. That would have also given us time so that 

the gentleman from Arizona could have had his amendment ready 

for this Committee. 

But the fact is, we are willing to go with an amendment—Let me 

put it this way. If you don’t—we are willing to go with an amendment now that says 180 and 90 days. And if the gentleman thinks, 

upon further reflection before the floor, that for some reason, if we 

were to pass that amendment with the gentleman’s support, that 

the language—the only language here is the time. If the language 

needs changing, you can certainly try to do that on the floor. But 

it would certainly be helpful I would think to the process if we 

agree on 180 days and 90 days, to get that concept at least in the 

bill at this point. 

At this point, let me ask unanimous consent to change my 

amendment to 180 days and 90 days. 

Chairman SENSENBRENNER. Is there objection? 

Hearing none, the modification is agreed to. 

Mr. COBLE. Objection. 

Chairman SENSENBRENNER. Objection is heard. 

Mr. NADLER. Objection is heard to—? 

Chairman SENSENBRENNER. The gentleman from North Carolina, 

Mr. Coble. 

The question is on the option——

Mr. NADLER. Well, Mr. Chairman, I will withdraw the amendment and submit another amendment with the appropriate number 

of days in about 20 minutes. If you want to waste the time, I am 

perfectly willing to do that. 

I withdraw the amendment. 

Chairman SENSENBRENNER. The amendment is withdrawn. 

Ms. JACKSON LEE. Mr. Chairman, I have an amendment. 

Chairman SENSENBRENNER. The gentlewoman from Texas, Ms. 

Jackson Lee. 

Ms. JACKSON LEE. I thank the Chairman very much. I have an 

amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

319

Ms. JACKSON LEE. It should be—I don’t want to mislabel it. I 

have it as 052, amendment to—I am sorry, excuse me. Let’s see. 

Excuse me, I am sorry. The amendment is 001 XML Section 218. 

The CLERK. Amendment to H.R. 3199, offered by Ms. Jackson 

Lee. At the appropriate place in the bill insert the following new 

section. 

Sec. 218. Notice of Search or Surveillance If Subject of Such 

Search Or Surveillance Is A United States Person That Is Not An 

Agent Of A Foreign Power. 

(a) Electronic Surveillance. —Section 106 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1806) is amended by 

adding at the end the following new subsection: 

‘‘(1) Where an electronic surveillance authorized and conducted 

pursuant to section 105 involves a United States person—’’

Ms. JACKSON LEE. Mr. Chairman, I would ask unanimous that 

the amendment be considered as read. 

Chairman SENSENBRENNER. Without objection, so ordered. 

[The amendment of Ms. Jackson Lee follows:]

320


3199FF1.eps
321


3199FF2.eps
322


3199FF3.eps
323

Chairman SENSENBRENNER. The gentlewoman is recognized for 5 

minutes. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. I note 

throughout the day the vigorous——

Mr. SMITH. Mr. Chairman, I reserve a point of order. 

Chairman SENSENBRENNER. It is too late to reserve a point of 

order. The gentlewoman has already been recognized. 

Ms. JACKSON LEE. May I proceed, Mr. Chairman? 

Chairman SENSENBRENNER. The gentlewoman is recognized. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. 

I note throughout the day that there has been a vigorous discussion, and I would hope that that discussion might have lent itself 

to a number of opportunities to work together. As I started this 

morning, I indicated my departure was on the basis of a historic 

day today, and that is the return to human space flight. 

We have an historic opportunity, which is to recognize that we 

are a Nation of laws and, of course, a Nation of liberty. This 

amendment tries to focus on that particular point and it addresses 

part of the number of abuses that have occurred under the USA 

PATRIOT Act. In particular, I would like to bring attention to an 

abuse in the Brandon Mayfield case. The FBI used Section 218 to 

secretly break into his house, download the contents of four computer drives, take DNA evidence, and take 355 digital photographs. 

Though the FBI admits Mr. Mayfield is innocent, they still will not 

divulge a secret court order to him or allow him to defend himself 

in court. It is unclear how the search was for any reason but to find 

evidence incriminating Mr. Mayfield. 

In Virginia, we are told of a physician of Pakistani origin. In fact, 

I believe his discipline is as a neurologist. Well-respected in his 

community, arrested. We understand that his property may have 

been searched. Ultimately, after a period of time, he was released. 

To his friends and family, they welcomed him back. But at the 

same time, suspicion still presides over him among his peers and 

neighbors. 

And so I speak strongly in support of an amendment that I believe speaks to the question of liberty. In general, this amendment 

would amend the FISA to protect the Fourth Amendment rights of 

individuals whose homes are secretly searched, or conversations 

overheard, but who turn out not to be spies and terrorists, by requiring that they may be notified of the search or surveillance, of 

the fact. 

More specifically, the amendment states that where electronic 

surveillance is authorized for use on a United States person, if at 

any time it is determined by the Attorney General that the person 

is not an agent of a foreign power, the Attorney General must give 

notice to the person no later than 180 days after the date it is determined that the person is not an agent of a foreign power. 

Under the amendment, the same principle is applied to physical 

searches, pen registers, taps, and trace devices. 

Before moving forward, it is important to mention why this 

amendment is needed. Section 218 broadens the circumstances 

when secret surveillance and secret searches targeted against 

Americans may be used. In fact, the number of FISA surveillances 

and searches have substantially increased since the PATRIOT Act. 

Having eliminated a key safeguard against abuse of these extraorVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00327 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1
324

dinary powers, Congress should now act to protect constitutional 

rights at issue in FISA surveillance. 

Today we cannot ignore the Constitution in reauthorizing this 

legislation. Congress can do so without erecting a new wall against 

information sharing, one of the rationales for adopting Section 218. 

The suggested protections will not interfere with information sharing; in all events, Section 504 of the PATRIOT Act explicitly states 

that FISA information may be shared with law enforcement personnel. FISA, unlike sneak-and-peek searches under Section 213 of 

the PATRIOT Act, authorizes searches and wiretaps that are kept 

permanently from the Americans whose homes and conversations 

are targeted, where secrecy raises serious Fourth Amendment concerns. As a result of Section 218, the use of these extraordinary 

powers has increased. 

The ability or the inability to give notice to someone proven innocent also lends itself to one of our ugliest accusations in America, 

and that is racial profiling and religious profiling, leaning more toward individuals of a particular religion or race in the course of our 

efforts to secure the homeland. FISA procedures also raise due 

process concerns when individuals are charged based on FISA evidence. The only time the Government is required to inform an individual that he has been subject to FISA surveillance is when it 

brings charges against him. 

This amendment is transparent when necessary. It is transparent when the individual has been proven innocent, no charges 

have been brought against him. It seems absolutely no reason that 

the individual cannot, if you will, be given notice no later than 180 

days after the date it is determined that the person is not an agent 

of a foreign power. It seems that this comports with our——

Mr. SMITH. (presiding) The gentlewoman’s time has expired. 

Ms. JACKSON LEE. It seems that this comports, Mr. Chairman, 

with our effort at adhering to laws and to liberty. I would ask my 

colleagues to support this amendment. 

Mr. FEENEY. Mr. Chairman? 

Mr. SMITH. The gentleman from Florida, Mr. Feeney, is recognized. 

Mr. FEENEY. I move to strike the last word, and I appreciate the 

gentlelady’s——

Mr. SMITH. The gentleman is recognized for 5 minutes. 

Mr. FEENEY. I appreciate the gentlelady’s comments. In the first 

place, we are very mindful of the constitutional requirements of the 

Bill of Rights and elsewhere. There is no part of the PATRIOT Act 

that has been determined to be infirm by any Federal court as unconstitutional. 

Secondly, while the gentlelady talks about the rights of citizens—

and they are very important on this side of the aisle, I can assure 

her—we are not talking about criminal investigations of citizens. 

We are talking about terrorist investigations or spy investigations. 

And thirdly, while the gentlelady’s amendment goes to notification by third parties of individuals if they are determined by the 

Justice Department not to actually be an agent of a foreign power, 

her amendment doesn’t say anything about the case where this individual that was originally a target turns out to be connected to 

a spy, perhaps the husband or the wife of a spy, perhaps a partner 

of a spy. And what the gentlelady is forcing the Justice DepartVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00328 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1
325

ment to do with her amendment is to have our folks in the middle 

of an international terrorist or spy investigation show our cards to 

the whole world, including the bad guys. And I suggest that it is 

a bad idea. 

I yield back the balance of my time. 

Mr. SMITH. The gentleman yields back the balance of his time. 

Are there any other members who wish to be heard on the amendment? 

If not, the vote occurs on the amendment. All those in favor——

Mr. SCHIFF. I would move to strike the last word and I would 

yield my time——

Mr. SMITH. The gentleman from California is recognized for 5 

minutes. 

Mr. SCHIFF. And I yield to the gentlewoman. 

Ms. JACKSON LEE. Mr. Chairman, let me beg to differ with my 

good friend. A number of sections have been found unconstitutional. Let me share with the gentleman. Section 805 has been 

found unconstitutional by three separate courts. That is the question of material support for terrorism. The 9th Circuit found the 

provision prohibiting personnel in training was overly vague. The 

Central California District Court found the provision prohibiting 

expert advice and assistance was overly vague. A New York District Court found the provision prohibiting personnel and acting as 

a quasi-employee overly vague. 

A number of these provisions have been found to be abusive and, 

of course, an over-reach. I join my distinguished friend to argue for 

security. We have had a number of incidences of which we even 

recognize the importance of intelligence, such as the tragedy of the 

rail explosions in London, England. My point is that there comes 

a point, when the individual is found not to be part of a foreign 

agent, when you tell that individual. 

Now, if you have information against, if you will, the wife, the 

cousin, the neighbor of this individual, then that is who the FBI 

should be reaching out to, not the particular person who has been 

cleared of being a foreign agent. And cleared. If the FBI wants to 

start this process again, they can start the process again. This simply provides them with the appropriate notice after they have been 

cleared and determined that they are not an agent of a foreign 

power, which is the basis of this particular section. 

Mr. FEENEY. Will the gentlelady yield? 

Ms. JACKSON LEE. I yield for a moment. 

Mr. FEENEY. The point is, it is too late after you tell Mrs. Benedict Arnold that she was the subject of an investigation, if you find 

out that it is her husband that wants to throw the war to the bad 

guys. 

Ms. JACKSON LEE. Reclaiming my time. I think that it is not too 

late, frankly. And I think that when the FBI or when law enforcement makes a determination that this individual is not an agent 

of a foreign power, you can be assured that in the course of doing 

so they have investigated all of their extended family members, 

friends, neighbors, and otherwise. And they have the ability to, if 

you will, to secure those persons in the appropriate way so that if 

they have information that is relevant, they can have those individuals incarcerated. 

326

This provides—contributes to the list of abuses that has been 

generated by the PATRIOT Act, and in actuality it offers more of 

an undermining of our attempt to be secure than it does in enhancing our attempt to be secure. It casts a wide net on people that are 

already established as not being an agent of a foreign power. 

I frankly believe that this is not working, that this is an amendment that is clearly not over-broad. It simply makes a statement 

of giving notice. It simply allows someone to proceed to further 

clear themselves and to be made aware that they have been determined not to be an agent of a foreign power. 

Again, it does not stop the authorities from investigating all 

other people associated with them. 

And I would ask my colleagues to support this amendment. 

Mr. SMITH. The question occurs on the amendment. All those in 

favor, say aye. All those opposed say nay. 

Ms. JACKSON LEE. rollcall. 

Mr. SMITH. The noes have it, and the amendment is not agreed 

to. The clerk will call the roll. 

The CLERK. Mr. Hyde? 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. Mr. Coble? 

[No response.] 

The CLERK. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

[No response.] 

The CLERK. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

[No response.] 

The CLERK. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

[No response.] 

The CLERK. Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

[No response.] 

The CLERK. Mr. Green? 

[No response.] 

The CLERK. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

327

[No response.] 

The CLERK. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

[No response.] 

The CLERK. Mr. Conyers? 

[No response.] 

The CLERK. Mr. Berman? 

[No response.] 

The CLERK. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

[No response.] 

The CLERK. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

[No response.] 

The CLERK. Ms. Lofgren? 

[No response.] 

The CLERK. Ms. Jackson Lee? 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. Ms. Waters? 

[No response.] 

The CLERK. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

[No response.] 

The CLERK. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Are there any members who wish to 

cast or change their votes? The gentleman from North Carolina is 

recognized. 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Gallegly, is recognized. 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. 

Chairman SENSENBRENNER. The gentleman from within, Mr. 

Green, is recognized. 

328

Mr. GREEN. No. 

The CLERK. Mr. Green, no. 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Goodlatte? 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. 

Chairman SENSENBRENNER. The gentleman from Tennessee, Mr. 

Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. 

Chairman SENSENBRENNER. The gentleman from Texas, Mr. 

Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. 

Chairman SENSENBRENNER. The gentleman from Indiana, Mr. 

Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. 

Chairman SENSENBRENNER. The gentleman from Ohio, Mr. 

Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. 

Chairman SENSENBRENNER. The gentleman from Iowa, Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. 

Chairman SENSENBRENNER. The gentleman from North Carolina, 

Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. 

Chairman SENSENBRENNER. The gentlewoman from California, 

Ms. Waters. 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. 

Chairman SENSENBRENNER. Are there any other members who 

wish to vote or change their vote? If not—Excuse me, the gentleman from Michigan, Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. 

Chairman SENSENBRENNER. The clerk will report. 

The CLERK. Mr. Chairman, there are 10 ayes and 23 noes. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. 

The gentleman from Arizona, Mr. Flake, is recognized for an 

amendment. 

Mr. FLAKE. I have an amendment at the desk and I ask unanimous consent that it be considered the Flake-Nadler amendment. 

Chairman SENSENBRENNER. The clerk will read the amendment. 

And without objection, it will be so named. 

The CLERK. Mr. Chairman, I don’t have a copy of the amendment. 

329

Chairman SENSENBRENNER. Okay. It will be forthcoming, I think. 

The gentleman from Arizona, Mr. Flake, is recognized for 5 minutes to explain his amendment. 

Mr. FLAKE. I thank the Chairman. I thank Mr. Nadler for bringing this up. I have worked with Mr. Nadler and others on PATRIOT Act Reform Caucus and many of the amendments that we 

have talked about were discussed within that group. 

Mr. SCOTT. Mr. Chairman, point of order. Have copies been distributed? 

Mr. FLAKE. I am in the process. 

Mr. SMITH. If the gentleman from Arizona will suspend just for 

a minute while the amendment is distributed. 

[Pause.] 

Mr. NADLER. Would the gentleman yield for a question while we 

are——

Mr. SMITH. Which gentleman? 

Mr. NADLER. Mr. Flake. 

Mr. FLAKE. I yield for a question. 

Mr. SMITH. Before we proceed, I would like to make sure that the 

amendment has been passed out. Without objection, the amendment will be considered as read. 

[The amendment of Mr. Flake and Mr. Nadler follows:]

330


3199GG.eps
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Mr. SMITH. The gentleman from Arizona is recognized for 5 minutes. And if he wants to yield for a question——

Mr. FLAKE. I yield for a question. 

Mr. NADLER. My question is, just looking at this amendment 

right now, it says—the second part—by inserting ‘‘for not more 

than 90 days’’ after ‘‘may be extended.’’

Is that one 90-day extension, or is that a succession of——

Mr. FLAKE. It has to be in increments of 90 days. 

Mr. NADLER. In increments. But it is not limited to one? 

Mr. FLAKE. It is not limited to one. 

Mr. NADLER. Thank you. 

Mr. FLAKE. I will go ahead and explain the amendment. This is—

we have had concern about the delayed notification. I have always 

felt that we needed some better structure there. This, as I mentioned, has been an item that the PATRIOT Act Reform Caucus 

has been concerned about. We took 180 days; that is the outside 

edge right now that can be held. And we have codified that. And 

then not-more-than-90-day extensions beyond that time, in increments. 

And with that, I will yield back. 

Mr. SMITH. The gentleman yields back his time. The gentleman 

from New York, Mr. Nadler, is recognized. 

Mr. NADLER. Thank you, Mr. Chairman. 

Mr. Chairman, I would have preferred, as my amendment a few 

minutes ago made clear, a shorter time periods, although, since in 

any event they are increments, they could amount to the same 

thing in the end, but more frequent judicial review. But putting 

180 days, and 90-day increments after that, is a constructive step 

forward. I commend Mr. Flake for it. And I will certainly support 

the amendment. 

I notice that in the haste, it doesn’t have the name of the sponsor 

on it. I assume the names of the sponsors will be Mr. Flake and 

a few others——

Mr. FLAKE. I just asked unanimous consent to have it be considered the Flake-Nadler amendment. 

Mr. NADLER. And perhaps some others who wanted to, if they 

also want to. 

Mr. FLAKE. That would be okay with me. 

Mr. NADLER. I thank the gentleman, and I urge everyone to support this very worthy amendment. 

Mr. SMITH. The gentleman yields back his time. Are there any 

other members who wish to be heard on the amendment? 

If not, all in favor say aye? All opposed, nay? 

The ayes have it and the amendment is agreed to. 

Are there any other amendments? The gentleman from Michigan, 

Mr. Conyers, is recognized. 

Mr. CONYERS. Mr. Chairman, I have an amendment at the desk 

and I ask that it be brought up at this time. 

Mr. SMITH. The clerk will report the amendment. 

The CLERK. Mr. Chairman, I have two Conyers amendments. 

Mr. CONYERS. This deals with the—the longer one, the three provisions that comprise the bill. 

The CLERK. Amendment to H.R. 3199, offered by MR. Conyers. 

At the end of the bill, add the following: 

Section ———. Reinstating the——

332

Mr. SMITH. Without objection, the amendment will be considered 

as read. 

[The amendment of Mr. Conyers follows:]

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3199HH3.eps
336

Mr. SMITH. The gentleman from Michigan is recognized for 5 

minutes to explain his amendment. 

Mr. CONYERS. Mr. Chairman and members of the Committee. In 

2001, everyone on this Committee agreed to the three provisions 

which I have now brought together under one proposal, which provided necessary and reasonable checks on the Government. 

Problem: These provisions were removed when the bill went to 

the Rules Committee somewhere in the middle of the night before 

it came to the floor the next day. 

And here is what I propose in this bill, is that we restore these 

three provisions, which I think are pretty straightforward and are 

based on a rationale that we had originally agreed to. The first is 

that the Government shouldn’t be able to use electronic communications as evidence when they are illegally intercepted. The second is that the Government should have to report to Congress 

about disclosures of stored wire and electronic communications. 

And the third is that we increase the amount of civil damages a 

person can recover against those who willfully disclose stored communications. 

With reference to the first, we agreed to provide necessary and 

reasonable checks on the Government that they shouldn’t be able 

to use electronic communications as evidence when they are illegally intercepted. Under current law, you recall, illegally obtained 

oral and wire intercepts can’t be used by someone in court. However, illegally obtained electronic communications can be, and what 

we do with this amendment is simply correct that problem. 

For the second point, we want disclosures of stored wire and electronic communications reported to Congress, and I have provided 

for that. Criminal wiretap and pen trap and trace statutes already 

require similar reporting. This provision of my amendment merely 

asks the Government to report on disclosures of stored wire and 

electronic communications as well. 

And finally, we increase the civil damages a person can recover 

against those who willfully disclose stored communications. And 

this raises it from a pittance of $1,000——

Mr. SMITH. The gentleman’s time has expired. Without objection, 

he will be recognized for an additional minute. 

Mr. CONYERS. Thank you. We merely increased the damages to $10,000 in the order rather than $1,000, to ensure that the disclosures don’t occur. 

These are common-sense, reasonable protections originally 

agreed to by the Committee. I hope that that will occur again. 

Thank you for the time. 

Mr. SMITH. Thank you, Mr. Conyers. 

The gentleman from California, Mr. Lungren, is recognized. 

Mr. LUNGREN. I rise in opposition to the amendment. 

Mr. SMITH. The gentleman is recognized for 5 minutes. 

Mr. LUNGREN. Obviously, I was not here during the Committee’s 

consideration of the original PATRIOT Act. But in looking at the 

gentleman’s amendment, with respect to the suppression provisions, it is my understanding that under current law as passed 

there is a good faith exception, which is not part of the gentleman’s 

amendment. And I just wonder if that is the intention of the gentleman. 

Mr. SMITH. Is the gentleman here? 

337

Mr. CONYERS. Yes. We add the stored—there is that provision 

that you suggest, but it doesn’t——

Mr. LUNGREN. By court rule rather than statute, as I understand 

it, and yours would change it. Correct? 

Mr. CONYERS. Exactly right. And we are just adding stored wire 

and electronic communications to be reported to the Congress, that 

the electronic communications as evidence that are illegally intercepted be excluded as court law, and that we raise the fine from 

$1,000 to $10,000. 

Mr. LUNGREN. All right, based on what the gentleman has said, 

I would have to oppose this amendment, because it seems to me 

that the good faith exception is one that is appropriate, particularly 

in these cases. And again, as I understand what the gentleman 

does is remove a good faith exception with respect to the suppression part of his amendment—I don’t speak to the other parts of his 

amendment because, frankly, I don’t have those before us. 

I yield back the balance of my time. 

Ms. LOFGREN. Would the gentleman yield? 

Mr. SMITH. The gentleman has yielded back the remaining of his 

time. 

Ms. LOFGREN. I move to strike the last word. 

Mr. SMITH. The gentlewoman from California, Ms. Lofgren, is 

recognized. 

Ms. LOFGREN. I won’t use the 5 minutes. But I do think that, certainly, my colleague from California, Mr. Lungren, was not a member of the Committee when the PATRIOT Act was drafted. But for 

those who were on the Committee at that time, I would hope and 

expect that they would vote once again for this language. This was 

unanimously passed by the entire Committee, and I think we will 

be looking closely at members who voted for it once, expecting that 

they would be consistent in their vote this time. 

And I would yield back. 

Mr. SMITH. The gentlewoman yields back the balance of her time. 

Are there any other members who wish to be heard on this amendment? 

Ms. LOFGREN. I ask unanimous consent to reclaim my time and 

yield it to Mr. Conyers. 

Mr. SMITH. The gentlewoman yields the balance of her time to 

Mr. Conyers, then. 

Mr. CONYERS. I just wanted the gentleman from California to 

know that we are happy to include the good faith exception part 

that he raised, because we have no—we are in agreement with it. 

We just want to make it clear, because that is not a point of contention between us. 

Mr. SMITH. The gentlewoman yields back the balance of her time. 

The vote is on the amendment. All in favor, say aye? 

Does the gentleman wish to continue to be recognized? 

Mr. CONYERS. Yes. Mr. Chairman, I just ask unanimous consent 

that, under 215(a)(2)(B), that we add ‘‘or when done in good faith.’’ 

So it would read, (B) when done in good faith whenever any wire, 

oral, or electronic communication has been intercepted. 

The point is to emphasize the good faith exception for purposes 

of clarification for anyone that might think that it is not involved. 

Mr. SMITH. Without objection, so ordered. 

Now the vote——

338

Mr. SCOTT. Reserving the right to object, I would like to ask a 

question. 

Mr. SMITH. The gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Is that in good faith pursuant to a warrant? 

Mr. CONYERS. I don’t know if the statute, Mr. Scott, speaks to 

whether there is a warrant involved or not. I think that good faith 

would likely include it, but I can’t tell you right now that it would 

require a warrant or not. Not clear. 

Mr. SMITH. We will now go to a vote on the amendment. All in 

favor——

Mr. FEENEY. Mr. Chairman? 

Mr. SMITH. Who wishes to be recognized? 

Mr. FEENEY. Mr. Chairman, I understood that there was a unanimous consent request, and if it is timely, I would like to object to 

that. 

Mr. SMITH. There was a unanimous consent request and no one 

was recognized in an objection. 

Mr. FEENEY. I thought we were still on questions and discussion 

about the unanimous consent request. 

Mr. Chairman, I will, given the confusion, withdraw the objection. 

Mr. SMITH. Okay, without objection the gentleman can withdraw 

his objection. We will now proceed to a vote on the amendment. 

All in favor, say aye? All opposed, say nay? 

The nays appear to have it. The amendment is not agreed to. 

Mr. CONYERS. Could I get a record vote? 

Mr. SMITH. And a record vote has been requested. The clerk will 

call the roll. 

The CLERK. Mr. Hyde? 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. Mr. Coble? 

[No response.] 

The CLERK. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

[No response.] 

The CLERK. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

[No response.] 

The CLERK. Mr. Lungren? 

[No response.] 

The CLERK. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

339

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

[No response.] 

The CLERK. Mr. Feeney? 

Mr. FEENEY. No. 

Mr. KING. No. 

The CLERK. Mr. Feeney, no. Mr. King, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

[No response.] 

The CLERK. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

340

Mr. SMITH. Are there any other members who wish to vote or 

change their vote? The gentleman from North Carolina, Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Mr. SMITH. The gentleman from Ohio, Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. 

Mr. SMITH. The gentleman from California, Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. 

Mr. SMITH. The gentleman from California, Mr. Lungren. 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. 

Mr. SMITH. The gentleman from Florida, Mr. Goodlatte? 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. 

Mr. SMITH. Any other member who wishes to vote or change 

their vote? If not, the clerk will——

The gentleman from Massachusetts? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. 

Mr. SMITH. The gentleman from California, Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. 

Mr. SMITH. Any other members? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 14 ayes and 23 noes. 

Mr. SMITH. The amendment is not agreed to. 

Are there any other——

Mr. NADLER. Mr. Chairman? 

Mr. SMITH. The gentleman from New York, Mr. Nadler, is recognized. 

Mr. NADLER. Thank you, Mr. Chairman. I have an amendment 

at the desk. This is labeled ‘‘Gag Order.’’

Mr. SMITH. Does the clerk have the amendment? 

Mr. NADLER. It says, ‘‘Sec. lll. Gag Order.’’

The CLERK. Mr. Chairman, I don’t have that amendment at the 

desk. 

Mr. SMITH. While we are getting that amendment——

Mr. NADLER. Well, there it comes. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Nadler of 

New York. Insert at the appropriate place——

Mr. CHABOT. Mr. Chairman, reserving a point of order. 

Mr. SMITH. The gentleman from Ohio reserves a point of order. 

The clerk will proceed. 

The CLERK. —insert at the appropriate place in the bill the following: 

Sec. lll. Gag Order. 

(a) In General. Section 2709(c) of title 18, United States Code, is 

amended to read as follows: 

‘‘(c) Prohibition of Certain Disclosure.’’

‘‘(1) In General. No wire or electronic communications service 

provider, or officer, employee, or agent thereof, shall disclose to any 

person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section for 90 

days—’’

341

Mr. SMITH. Without objection, the amendment will be considered 

as read. 

[The amendment of Mr. Nadler follows:]

342

1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MR. NADLER OF NEW YORK

Insert at the appropriate place in the bill, the following:

1 SEC. ll. GAG ORDER.

2 (a) IN GENERAL.—Section 2709(c) of title 18,

3 United States Code, is amended to read as follows:

4 ‘‘(c) PROHIBITION OF CERTAIN DISCLOSURE.—

5 ‘‘(1) IN GENERAL.—No wire or electronic com6 munication service provider, or officer, employee, or

7 agent thereof, shall disclose to any person that the

8 Federal Bureau of Investigation has sought or ob9 tained access to information or records under this

10 section for 90 days after receipt of such request

11 from the Bureau.

12 ‘‘(2) EXCEPTION.—A wire or electronic commu13 nication service provider, or officer, employee, or

14 agent thereof, who receives an order under this sub15 section may disclose that the Federal Bureau of In16 vestigation has sought or obtained access to infor17 mation or records under this section to—


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H.L.C.

1 ‘‘(A) those persons to whom disclosure is

2 necessary in order to comply with an order

3 under this section; or

4 ‘‘(B) an attorney in order to obtain legal

5 advice regarding such order.

6 ‘‘(3) EXTENSION.—The Director of the Federal

7 Bureau of Investigation, or the Director’s designee

8 in a position not lower than Deputy Assistant Direc9 tor at Bureau headquarters or a Special Agent in

10 Charge of a Bureau field office designated by the

11 Director, may apply for an order prohibiting disclo12 sure that the Federal Bureau of Investigation has

13 sought or obtained access to information or records

14 under this section for an additional 180 days.

15 ‘‘(4) JURISDICTION.—An application for an

16 order pursuant to this subsection shall be filed in

17 the district court of the United States in any district

18 within which the authorized investigation that is the

19 basis for a request pursuant to this section is being

20 conducted.

21 ‘‘(5) APPLICATION CONTENTS.—An application

22 for an order pursuant to this subsection must state

23 specific and articulable facts giving the applicant

24 reason to believe that disclosure that the Federal

25 Bureau of Investigation has sought or obtained acVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00347 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1

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3

H.L.C.

1 cess to information or records under this section will

2 result in—

3 ‘‘(A) endangering the life or physical safety

4 of any person;

5 ‘‘(B) flight from prosecution;

6 ‘‘(C) destruction of or tampering with evi7 dence;

8 ‘‘(D) intimidation of potential witnesses; or

9 ‘‘(E) otherwise seriously endangering the

10 national security of the United States by alert11 ing a target, a target’s associates, or the for12 eign power of which the target is an agent, of

13 the Government’s interest in the target.

14 ‘‘(6) STANDARD.—The court may issue an ex

15 parte order pursuant to this subsection if the court

16 determines there is reason to believe that disclosure

17 that the Federal Bureau of Investigation has sought

18 or obtained access to information or records under

19 this section will result in—

20 ‘‘(A) endangering the life or physical safety

21 of any person;

22 ‘‘(B) flight from prosecution;

23 ‘‘(C) destruction of or tampering with evi24 dence;

25 ‘‘(D) intimidation of potential witnesses; or


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4

H.L.C.

1 ‘‘(E) otherwise seriously endangering the

2 national security of the United States by alert3 ing a target, a target’s associates, or the for4 eign power of which the target is an agent, of

5 the Government’s interest in the target.

6 ‘‘(7) RENEWAL.—An order under this sub7 section may be renewed for additional periods of up

8 to 180 days upon another application meeting the

9 requirements of paragraph (5) and a determination

10 by the court that the circumstances described in

11 paragraph (6) continue to exist.’’.

12 (b) FINANCIAL INSTITUTIONS.—Section

13 1114(a)(5)(D) of the Right to Financial Privacy Act of

14 1978 (12 U.S.C. 3414(a)(5)(D)) is amended to read as

15 follows:

16 ‘‘(D) NONDISCLOSURE.—

17 ‘‘(i) IN GENERAL.—No financial insti18 tution, or officer, employee, or agent of

19 such institution, shall disclose to any per20 son that the Federal Bureau of Investiga21 tion has sought or obtained access to a

22 customer’s or entity’s financial records

23 under this paragraph for 90 days after re24 ceipt of such request from the Bureau.


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5

H.L.C.

1 ‘‘(ii) EXCEPTION.—A financial institu2 tion, or officer, employee, or agent of such

3 institution, who receives an order under

4 this subparagraph may disclose that the

5 Federal Bureau of Investigation has

6 sought or obtained access to a customer’s

7 or entity’s financial records to—

8 ‘‘(I) those persons to whom dis9 closure is necessary in order to comply

10 with a request under this subpara11 graph; or

12 ‘‘(II) an attorney in order to ob13 tain legal advice regarding such re14 quest.

15 ‘‘(iii) EXTENSION.—The Director of

16 the Federal Bureau of Investigation, or the

17 Director’s designee in a position not lower

18 than Deputy Assistant Director at Bureau

19 headquarters or a Special Agent in Charge

20 of a Bureau field office designated by the

21 Director, may apply for an order prohib22 iting disclosure that the Federal Bureau of

23 Investigation has sought or obtained access

24 to a customer’s or entity’s financial records


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347

6

H.L.C.

1 under this paragraph for an additional 180

2 days.

3 ‘‘(iv) JURISDICTION.—An application

4 for an order pursuant to this subsection

5 shall be filed in the district court of the

6 United States in any district within which

7 the authorized investigation that is the

8 basis for a request pursuant to this para9 graph is being conducted.

10 ‘‘(v) APPLICATION CONTENTS.—An

11 application for an order pursuant to this

12 subparagraph must state specific and

13 articulable facts giving the applicant rea14 son to believe that disclosure that the Fed15 eral Bureau of Investigation has sought or

16 obtained access to a customer’s or entity’s

17 financial records under this paragraph will

18 result in—

19 ‘‘(I) endangering the life or phys20 ical safety of any person;

21 ‘‘(II) flight from prosecution;

22 ‘‘(III) destruction of or tam23 pering with evidence;

24 ‘‘(IV) intimidation of potential

25 witnesses; or


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348

7

H.L.C.

1 ‘‘(V) otherwise seriously endan2 gering the national security of the

3 United States by alerting a target, a

4 target’s associates, or the foreign

5 power of which the target is an agent,

6 of the Government’s interest in the

7 target.

8 ‘‘(vi) STANDARD.—The court may

9 issue an ex parte order pursuant to this

10 subparagraph if the court determines there

11 is reason to believe that disclosure that the

12 Federal Bureau of Investigation has

13 sought or obtained access to a customer’s

14 or entity’s financial records under this

15 paragraph will result in—

16 ‘‘(I) endangering the life or phys17 ical safety of any person;

18 ‘‘(II) flight from prosecution;

19 ‘‘(III) destruction of or tam20 pering with evidence;

21 ‘‘(IV) intimidation of potential

22 witnesses; or

23 ‘‘(V) otherwise seriously endan24 gering the national security of the

25 United States by alerting a target, a


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349

8

H.L.C.

1 target’s associates, or the foreign

2 power of which the target is an agent,

3 of the Government’s interest in the

4 target.

5 ‘‘(vii) RENEWAL.—An order under

6 this subparagraph may be renewed for ad7 ditional periods of up to 180 days upon an8 other application meeting the requirements

9 of clause (v) and a determination by the

10 court that the circumstances described in

11 clause (vi) of this subparagraph continue

12 to exist.’’.

13 (c) CONSUMER REPORTING AGENCIES.—Section

14 626(d) of the Fair Credit Reporting Act (15 U.S.C.

15 1681u(d)) is amended to read as follows:

16 ‘‘(d) CONFIDENTIALITY.—

17 ‘‘(1) IN GENERAL.—No consumer reporting

18 agency, or officer, employee, or agent of a consumer

19 reporting agency, shall disclose to any person that

20 the Federal Bureau of Investigation has sought or

21 obtained the identity of financial institutions or a

22 consumer report respecting any consumer under

23 subsection (a), (b), or (c) for 90 days after receipt

24 of a request or order under this section, and no con25 sumer reporting agency, or officer, employee, or


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9

H.L.C.

1 agent of a consumer reporting agency, shall include

2 in any consumer report any information that would

3 indicate that the Federal Bureau of Investigation

4 has sought or obtained such information or a con5 sumer report.

6 ‘‘(2) EXCEPTION.—A consumer reporting agen7 cy or officer, employee, or agent of a consumer re8 porting agency who receives an order under this sub9 section may disclose that the Federal Bureau of In10 vestigation has sought or obtained the identity of fi11 nancial institutions or a consumer report respecting

12 any consumer to—

13 ‘‘(A) those officers, employees, or agents of

14 a consumer reporting agency necessary to fulfill

15 the requirement to disclose information to the

16 Federal Bureau of Investigation under this sec17 tion; or

18 ‘‘(B) an attorney in order to obtain legal

19 advice regarding such requirement.

20 ‘‘(3) EXTENSION.—The Director of the Federal

21 Bureau of Investigation, or the Director’s designee

22 in a position not lower than Deputy Assistant Direc23 tor at Bureau headquarters or a Special Agent in

24 Charge of a Bureau field office designated by the

25 Director, may apply for an order prohibiting discloVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00354 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1

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10

H.L.C.

1 sure that the Federal Bureau of Investigation has

2 sought or obtained access to information or records

3 under subsection (a), (b), or (c) for an additional

4 180 days.

5 ‘‘(4) JURISDICTION.—An application for an

6 order pursuant to this subsection shall be filed in

7 the district court of the United States in any district

8 within which the authorized investigation that is the

9 basis for a request or order pursuant to this section

10 is being conducted.

11 ‘‘(5) APPLICATION CONTENTS.—An application

12 for an order pursuant to this subsection must state

13 specific and articulable facts giving the applicant

14 reason to believe that disclosure that the Federal

15 Bureau of Investigation has sought or obtained the

16 identity of financial institutions or a consumer re17 port respecting any consumer under subsection (a),

18 (b), or (c) will result in—

19 ‘‘(A) endangering the life or physical safety

20 of any person;

21 ‘‘(B) flight from prosecution;

22 ‘‘(C) destruction of or tampering with evi23 dence;

24 ‘‘(D) intimidation of potential witnesses; or


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11

H.L.C.

1 ‘‘(E) otherwise seriously endangering the

2 national security of the United States by alert3 ing a target, a target’s associates, or the for4 eign power of which the target is an agent, of

5 the Government’s interest in the target.

6 ‘‘(6) STANDARD.—The court may issue an ex

7 parte order pursuant to this subsection if the court

8 determines there is reason to believe that disclosure

9 that the Federal Bureau of Investigation has sought

10 or obtained the identity of financial institutions or a

11 consumer report respecting any consumer under

12 subsection (a), (b), or (c) will result in—

13 ‘‘(A) endangering the life or physical safety

14 of any person;

15 ‘‘(B) flight from prosecution;

16 ‘‘(C) destruction of or tampering with evi17 dence;

18 ‘‘(D) intimidation of potential witnesses; or

19 ‘‘(E) otherwise seriously endangering the

20 national security of the United States by alert21 ing a target, a target’s associates, or the for22 eign power of which the target is an agent, of

23 the Government’s interest in the target.

24 ‘‘(7) RENEWAL.—An order under this sub25 section may be renewed for additional periods of up


3199II.AAL
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12

H.L.C.

1 to 180 days upon another application meeting the

2 requirements of paragraph (5) and a determination

3 by the court that the circumstances described in

4 paragraph (6) continue to exist.’’.

5 (d) CONSUMER REPORTING AGENCIES REPORTING

6 TO GOVERNMENTAL AGENCIES.—Section 627(c) of the

7 Fair Credit Reporting Act (15 U.S.C. 1681v(c)) is amend8 ed to read as follows:

9 ‘‘(c) CONFIDENTIALITY.—

10 ‘‘(1) IN GENERAL.—No consumer reporting

11 agency, or officer, employee, or agent of a consumer

12 reporting agency, shall disclose to any person or

13 specify in any credit report that a government agen14 cy has sought or obtained access to information

15 under subsection (a) for 90 days after receipt of the

16 request for such information.

17 ‘‘(2) EXCEPTION.—A consumer reporting agen18 cy, or officer, employee, or agent of a consumer re19 porting agency, may disclose that a government

20 agency has sought or obtained access to information

21 under subsection (a) to—

22 ‘‘(A) those officers, employees, or agents of

23 a consumer reporting agency necessary to fulfill

24 the requirement to disclose information to the


3199II.AAM
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13

H.L.C.

1 Federal Bureau of Investigation under this sec2 tion; or

3 ‘‘(B) an attorney in order to obtain legal

4 advice regarding such requirement.

5 ‘‘(3) EXTENSION.—The supervisory official or

6 officer who signs a certification under subsection (b)

7 may apply in any district court of the United States

8 for an order prohibiting disclosure that a govern9 ment agency has sought or obtained access to infor10 mation under subsection (a) for an additional 180

11 days.

12 ‘‘(4) APPLICATION CONTENTS.—An application

13 for an order pursuant to this subsection must state

14 specific and articulable facts giving the applicant

15 reason to believe that disclosure that a government

16 agency has sought or obtained access to information

17 under subsection (a) will result in—

18 ‘‘(A) endangering the life or physical safety

19 of any person;

20 ‘‘(B) flight from prosecution;

21 ‘‘(C) destruction of or tampering with evi22 dence;

23 ‘‘(D) intimidation of potential witnesses; or

24 ‘‘(E) otherwise seriously endangering the

25 national security of the United States by alertVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00358 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1

3199II.AAN
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14

H.L.C.

1 ing a target, a target’s associates, or the for2 eign power of which the target is an agent, of

3 the Government’s interest in the target.

4 ‘‘(5) STANDARD.—The court may issue an ex

5 parte order pursuant to this subsection if the court

6 determines there is reason to believe that disclosure

7 that a government agency has sought or obtained

8 access to information under subsection (a) will result

9 in—

10 ‘‘(A) endangering the life or physical safety

11 of any person;

12 ‘‘(B) flight from prosecution;

13 ‘‘(C) destruction of or tampering with evi14 dence;

15 ‘‘(D) intimidation of potential witnesses; or

16 ‘‘(E) otherwise seriously endangering the

17 national security of the United States by alert18 ing a target, a target’s associates, or the for19 eign power of which the target is an agent, of

20 the Government’s interest in the target.

21 ‘‘(6) RENEWAL.—An order under this sub22 section may be renewed for additional periods of up

23 to 180 days upon another application meeting the

24 requirements of paragraph (4) and a determination


3199II.AAO
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15

H.L.C.

1 by the court that the circumstances described in

2 paragraph (5) continue to exist.’’.


3199II.AAP
357

Mr. SMITH. The gentleman from New York is recognized for 5 

minutes to explain his amendment. 

Mr. NADLER. Thank you, Mr. Chairman. 

Mr. Chairman, Section 505 of the PATRIOT Act authorizes field 

office—now, we have been talking at some length at different times 

today and on the floor of the House about Section 215 of the PATRIOT Act, which enables a FISA court to grant orders for certain 

collections of personal information. Section 505 of the PATRIOT 

Act authorizes FBI field office directors to collect in secret, without 

any court consideration, almost limitless sensitive personal information from entities that are not themselves under investigation—

that is, bookstores, travel agents, Internet service providers, and so 

forth—but have customers whose records the Government wants, 

by simply issuing a National Security Letter carrying the weight 

of law and the FBI’s own assertion that the request is relevant to 

a national security investigation. 

These National Security Letters, or NSLs, empower the FBI to 

amass personal documents without a judge signing off on a search 

warrant, without any other external check, such as a grand jury or 

even a FISA court. The target of the NSL will never know of its 

existence, partly because the recipient of the NSL is gagged from 

disclosing the demand, again as in Section 215. 

This secret search power has been the subject of a court challenge in Federal court in New York. In Doe v. Ashcroft, the Federal 

court judge in the Southern District of New York ruled that this 

provision, that the National Security Letters provision of the PATRIOT Act is unconstitutional. The court held that the absence of 

judicial review—and when I say ‘‘judicial review’’ here, I don’t 

mean review of the order, the fact that you can give this out without any judge ever seeing it—violates the Fourth Amendment right 

to be free from unreasonable searches and seizures, and the statutory prohibition against disclosing the FBI request to any person 

violates the First Amendment right to freedom of speech. And that 

means—‘‘any person’’ means any person, including your counsel. So 

you can’t even tell your lawyer so you can move to quash. 

The current language continues the unconstitutional permanent 

secrecy order contained in the existing FISA business records provision. To be constitutional, case law establishes that a secrecy 

order amounting to a prior restraint on speech, as this is, must be 

imposed by a court, not unilaterally by a Government, must be imposed on the basis of a meaningful standard that amounts to a 

compelling Government interest, must be temporary, and must 

allow for objectors to explain why the prior restraint is unjustified. 

What this amendment does is seek to make the gag order provision of the Section 505 National Security Letters comply with the 

Constitution. And it does that by saying, in essence, two things. It 

says that to get the gag order, you have to ask a court for it, and 

that the court can grant it upon a showing of various standards, 

that failure to keep it secret would endanger the life or physical 

safety of someone, would raise the danger of a flight from prosecution, would result or could result in the destruction or tampering 

with evidence, intimidation of potential witnesses, or otherwise seriously endanger the national security of the U.S., et cetera, et 

cetera—the catchall clause that some of us objected to in Section 

358

215. The court could order this for 90 days and could order 180-

day renewals indefinitely. 

So what this does, essentially, is make the gag order provision 

constitutional by saying you have to ask a court for it, the court 

can grant it for 90 days, and you can get 180-day extensions upon 

these showings. Let me just say that these showings are the same 

showings that are in Section 215. Although we wanted to take out 

the catchall provision, in this amendment we haven’t taken out the 

catchall provision. So it is the same showings that we have in Section 215, which everybody here has agreed to, except some of us 

who think it is too broad. 

So I would urge adoption of this amendment so that the gag 

order provision of Section 505 will be constitutional and so that it 

is a better thing to do, even if the Constitution didn’t require it. 

Mr. SMITH. And the gentleman yields back his time. 

Mr. NADLER. I yield back. 

Mr. SMITH. Does the gentleman from Ohio insist on his point of 

order? 

Mr. CHABOT. No, Mr. Chairman, I withdraw my point of order. 

Mr. SMITH. If not, the point is withdrawn. 

The gentleman from Florida, Mr. Feeney, is recognized. 

Mr. FEENEY. Move to strike the last word. 

Mr. SMITH. The gentleman is recognized for 5 minutes. 

Mr. FEENEY. I have the same objection to this reversal of the 

burden and putting it back on the Justice Department to maintain 

some secrecy in their investigation as I had on the previous amendment that dealt with 215. 

The nature of these investigations is such that 180 days is an 

awfully unreasonably short period of time. These investigations 

typically take not months, but years. In addition to that, this type 

of disclosure would require Federal investigators to tip off potential 

suspects, friends, associates of suspects, giving them a chance to go 

into hiding, to flee, to move up their potential terrorist attack—in 

other words, adjust themselves because we are once again putting 

all of our cards on the table in a very dangerous business. 

In The Center for National Security Studies v. The U.S. Department of Justice, a D.C. Circuit case in 2003, the court said that 

these types of disclosures would inform terrorists about the substantive and geographic focus of the investigation, would inform 

terrorists which of their members were compromised by the investigation and which were not, could allow terrorists to better evade 

the ongoing investigation and more easily formulate or revise 

counter-efforts. 

I think for all those reasons, these artificial deadlines and changing the burden of proof back to the Government as they fight terrorists is a bad idea——

Mr. NADLER. Would the gentleman yield. 

Mr. FEENEY. I will yield. 

Mr. NADLER. Thank you. Well, first of all, we are not changing 

the burden of proof. The standard in the amendment, as you will 

see, is if the court determines there is reason to believe—‘‘reason 

to believe’’ is a very low standard. That is not the burden of proof. 

It is not a preponderance of evidence, it is not proof, you know, by 

anything. There is reason to believe. And there is reason to believe 

359

what? Reason to believe any of the things that the gentleman from 

Florida said might happen. 

Yes, I agree with you, sir. In very many cases disclosure would 

result in unfortunate things such as you mentioned. All you have 

to show to the court is that there is reason to believe that the disclosure in this case would result in any of those, in any——

Mr. SMITH. The gentleman’s time has expired. 

Mr. NADLER. I ask for unanimous consent to an additional 2 minutes? 

Mr. SMITH. Without objection, the gentleman from Florida is 

given an additional minute. 

Mr. FEENEY. I request an additional minute, 30 seconds of which 

I will yield to the gentleman from New York. 

Mr. NADLER. Thank you. If we don’t do this, the courts have held 

that a gag order, especially on something which no court has seen, 

is unconstitutional unless you have given some reason to a court 

to agree to the gag order. You have to do that; otherwise, it is going 

to be flatly unconstitutional. 

All we are saying here, it is not a burden of proof. We are not 

giving the burden of proof to anybody. You have to convince the 

court there is reason to believe that any of these negative things 

would happen—not that definitely would, not even that it probably 

would. 

Mr. FEENEY. Well, reclaiming my time. At a minimum, this 

would put the burden back on the Government for every single investigation that is ongoing out there, where there is a NSA letter 

out there, with respect to every one of the third-party entities, to 

go back into court every 6 months. It would be an enormous paperwork burden, unnecessary. And to the extent that there may be 

some things that we can do probably with a much longer time period to ultimately comply with whatever concerns the court has, 

there may be a chance to remedy that in the future. But 180 days 

is clearly too short. 

With that, I yield back to the Chairman. 

Mr. SMITH. The gentleman yields back his time. 

Any other members who wish to be heard? 

The gentlewoman from California, Ms. Lofgren. 

Ms. LOFGREN. I move to strike the last word. 

Mr. SMITH. The gentlewoman is recognized for 5 minutes. 

Ms. LOFGREN. We did receive some information on how often this 

has been used, and it is not an astonishingly large number of 

times. So to think that there would be, assuming that the Department of Justice is being truthful to us—and I am not suggesting 

otherwise—this would not create a very substantial burden on the 

Department, number one. 

Number two, the historical record is that this has not been used 

very often. Well, it is not going to be used at all in the future because it is unconstitutional. And so, actually, Mr. Nadler is—I support the amendment with some reservations because this amendment would actually revive this section of the act and possibly 

make it constitutional. And with standards. 

And, you know, I guess the Republicans can reject it and have 

nothing, or they can have some standards that meet constitutional 

muster and have something. The choice is really yours. I think 

that, as I say, I support the amendment with just some reservaVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00363 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1
360

tions because I think the court ruling of unconstitutionality may 

actually be a preferable result. But that is on its way up, and there 

is some doubt as to what the Supreme Court will ultimately do. 

Mr. NADLER. Would the gentlelady yield? 

Ms. LOFGREN. I would be happy to yield to the gentleman. 

Mr. NADLER. Thank you. I appreciate the gentlelady’s remarks. 

And I would again say this has been held unconstitutional on 

two grounds. This amendment would cure one of those grounds. I 

am going to have a different amendment to cure the other ground. 

The other ground says that it is unconstitutional to issue—to have 

this search in the first place without at least a—without a court 

agreeing to it. Even in Section 215, you have a FISA court agreeing 

to it. Here, you have nobody except an FBI field office director directing it. 

But what this amendment deals with is the gag order. You can’t 

have a prior restraint on speech such as a gag order without a 

court agreeing to it for some good reason. That is elementary constitutional law. The court in New York said that. It is prior case 

law. If we don’t take this amendment, it is just going to be unenforceable. 

Now, when you say the burden of proof, this is a very minor burden. Some reason to believe. Some reason to believe; we have the 

catchall provision: otherwise seriously endangering the national security of the U.S. by alerting a target, a target’s associates, or a 

foreign power of which the target is an agent of the Government’s 

interest in the target. 

If the Government can’t convince a judge that there is some reason to believe that this should be held secret, then it probably 

shouldn’t be held secret. And if we value any kind of liberty, we 

will have this burden to go to courts. That is the whole point of the 

Fourth Amendment and the Bill of Rights. 

Ms. LOFGREN. Reclaiming my time. 

Mr. NADLER. I appreciate your yielding. 

Ms. LOFGREN. I would just note—I mean, having worked on the 

original PATRIOT Act, it is hard not to contrast how this process 

is working here today with how the process worked after 9/11. 

After 9/11, members on both sides of the aisle worked in good faith 

together to come up with an act that would, we hoped, make us 

safer. Mr. Nadler has offered this amendment in, really, that 9/11 

spirit. At that other time, this amendment would have been seen 

for what it is, an amendment that actually cures a defect in the 

bill that has rendered a section unenforceable. And because these 

votes are not on a party-line basis, there has been no real meeting 

of the minds, no deliberation, no discussion, the majority is going 

to reject an amendment that actually serves the interest of curing 

the defect that the court has found. 

Mr. CONYERS. Would the gentlelady——

Ms. LOFGREN. I would yield to the Ranking Member. 

Mr. CONYERS. I just want to point out that Mr. Nadler’s proposal 

here is uncharacteristically cooperative. I mean, he is saving a part 

of the PATRIOT Act and it is almost going unnoticed. Thanks to 

the gentlelady from California for pointing out that, without this, 

the continued unconstitutionality is going to likely continue on. 

And there is a sort of attitude that the Department of Justice 

has here that should be noted, that when they finally had to comVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00364 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1
361

ply with the Freedom of Information Act, they blacked out the sixpage list of National Security Letters so that nobody could figure 

out anything about anything. 

Ms. LOFGREN. Reclaiming my time, though, we do have access on 

a confidential basis to that information. And without saying any 

numbers, we can assert honestly that it is not an undue burden. 

And I do so assert. 

So I think the majority is being foolish in this case, but welcome 

to it. 

I yield back. 

Mr. SMITH. The gentlewoman yields back her time. 

The question is on the amendment. All in favor, say aye? All opposed, nay? 

The nays have it. 

A recorded vote has been requested. The clerk will call the roll. 

The CLERK. Mr. Hyde? 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. Mr. Coble? 

[No response.] 

The CLERK. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

[No response.] 

The CLERK. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. Mr. Lungren? 

[No response.] 

The CLERK. Mr. Jenkins? 

[No response.] 

The CLERK. Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. Mr. Inglis? 

[No response.] 

The CLERK. Mr. Hostettler? 

[No response.] 

The CLERK. Mr. Green? 

[No response.] 

The CLERK. Mr. Keller? 

[No response.] 

The CLERK. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

362

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

[No response.] 

The CLERK. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

[No response.] 

The CLERK. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Mr. SMITH. Are there any members who wish to vote or change 

their votes? The gentleman from Florida, Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. 

Mr. SMITH. The gentleman from Tennessee, Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. 

Mr. SMITH. The gentleman from North Carolina, Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Mr. SMITH. The gentleman from California, Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. 

Mr. SMITH. The gentleman from within, Mr. Green? 

363

Mr. GREEN. No. 

The CLERK. Mr. Green, no. 

Mr. SMITH. The gentleman from Indiana, Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. 

Mr. SMITH. The gentleman from Florida, Mr. Goodlatte? 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. 

Mr. SMITH. The gentleman from South Carolina, Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. 

Mr. SMITH. The gentleman from California, Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. 

Mr. SMITH. The other gentleman from California, Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. 

Mr. SMITH. The gentleman from Massachusetts, Mr. Delahunt? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. 

Mr. SMITH. The gentleman from California, Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. 

Mr. SMITH. And the clerk will report. 

The CLERK. Mr. Chairman, there are 14 ayes and 23 noes. 

Mr. SMITH. The amendment is not agreed to. 

Are there any other amendments? The gentleman from California, Mr. Schiff. 

Mr. SCHIFF. Mr. Chairman, I have an amendment at the desk, 

number 87. 

Mr. SMITH. The clerk will report the amendment. Does the clerk 

have the amendment? 

The CLERK. I do now, sir. 

Mr. SMITH. Okay. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Schiff of 

California. Add at the appropriate place the following: Section 

lll. Naturalization Benefits for Victims of September 11——

Mr. CHABOT. Mr. Chairman, reserving the right to object. 

Mr. SMITH. The gentleman from Ohio reserves the right to object. 

Mr. CHABOT. Point of order. 

Mr. SMITH. Raises a point of order. 

The CLERK. Subtitle C of Title 4 of the US PATRIOT Act as 

amended by inserting after Section 421——

Mr. SMITH. Without objection, the amendment will be considered 

as read. 

[The amendment of Mr. Schiff follows:] 

364

1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MR. SCHIFF OF CALIFORNIA

Add at the appropriate place the following:

1 SEC. lll. NATURALIZATION BENEFITS FOR VICTIMS OF

2 SEPTEMBER 11 TERRORISM.

3 Subtitle C of title IV of the USA PATRIOT ACT

4 is amended by inserting after section 421 the following:

5 ‘‘SEC. 421A. DECEASED ALIEN VICTIMS OF TERRORIST AT6 TACKS DEEMED TO BE UNITED STATES CITI7 ZENS.

8 ‘‘Notwithstanding title III of the Immigration and

9 Nationality Act (8 U.S.C. 1401 et seq.), and except as

10 provided in section 421C, each alien who died as a result

11 of a September 11, 2001, terrorist attack against the

12 United States, shall, as of that date, be considered to be

13 an honorary citizen of the United States if the alien held

14 lawful status under the immigration laws of the United

15 States as of that date.

16 ‘‘SEC. 421B. CITIZENSHIP ACCORDED TO ALIEN SPOUSES

17 AND CHILDREN OF CERTAIN VICTIMS OF

18 TERRORIST ATTACKS.

19 ‘‘Notwithstanding title III of the Immigration and

20 Nationality Act (8 U.S.C. 1401 et seq.), and except as


3199JJ.AAB
365

2

H.L.C.

1 provided in section 421C, an alien spouse or child of an

2 individual who was lawfully present in the United States

3 and who died as a result of a September 11, 2001, ter4 rorist attack against the United States shall be entitled

5 to naturalization as a citizen of the United States upon

6 being administered the oath of renunciation and allegiance

7 in an appropriate ceremony pursuant to section 337 of the

8 Immigration and Nationality Act, without regard to the

9 current status of the alien spouse or child under the immi10 gration laws of the United States, if the spouse or child

11 applies to the Secretary of Homeland Security for natu12 ralization not later than two years after the date of enact13 ment of this section. The Secretary of Homeland Security

14 shall record the date of naturalization of any person grant15 ed naturalization under this section as being September

16 10, 2001.

17 ‘‘SEC. 421C. EXCEPTIONS.

18 ‘‘Notwithstanding any other provision of this subtitle,

19 an alien may not be naturalized as a citizen of the United

20 States, or afforded honorary citizenship, under section

21 421A or 421B if the alien is—

22 ‘‘(1) inadmissible under paragraph (2) or (3) of

23 section 212(a) of the Immigration and Nationality

24 Act, or deportable under paragraph (2) or (4) of sec25 tion 237(a) of that Act, including any terrorist perVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00369 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1

3199JJ.AAC
366

3

H.L.C.

1 petrator of a September 11, 2001, terrorist attack

2 against the United States; or

3 ‘‘(2) a member of the family of a person de4 scribed in paragraph (1).’’.


3199JJ.AAD
367

Mr. SMITH. The gentleman from California is recognized for 5 

minutes to explain his amendment. 

Mr. SCHIFF. Thank you, Mr. Chairman. This amendment would 

grant citizenship to the spouses and children of legal immigrants 

who were killed on September 11th as well as grant honorary citizenship to those legal immigrants who were killed in the attacks. 

When American citizens, foreign nationals, and immigrants perished on September 11th, the immigration status of hundreds of 

families was thrown into turmoil. Hundreds of temporary workers 

and immigrants died shoulder to shoulder with thousands of Americans. 

My amendment is based on legislation by Representative 

Maloney and Senator Corzine, and it would bestow honorary citizenship on legal immigrants and non-immigrants who died in the 

disaster. Perhaps more important, the bill would offer citizenship 

to surviving spouses and children subject to a background investigation by the FBI. 

This is germane because the PATRIOT bill provided for exactly 

this relief, but there was a deadline in the PATRIOT bill that a 

number of people missed for filing for status. In the spirit of fairness and unity, it’s appropriate as we reauthorize the PATRIOT 

bill to extend this deadline, a short extension, to provide the privilege of citizenship to the families who lost so much because of this 

attack on the United States. 

Mr. Chairman, I yield back the balance of my time. 

Mr. SMITH. Does the gentleman from Ohio insist on his point of 

order? 

Mr. CHABOT. Yes, I do. 

Mr. SMITH. The gentleman is recognized to explain his point of 

order. 

Mr. CHABOT. Thank you, Mr. Chairman. I make a point of order 

that the amendment is not germane under House Rules. H.R. 3199 

reauthorizes certain provisions of the PATRIOT Act and the Intelligence Reform and Terrorism Prevention Act. House Rule XVI-7 

precludes amendments on a subject different from that under consideration. This amendment is outside the subject matter of the 

legislation we are considering at today’s markup. 

In addition, the fundamental purpose of this amendment is inconsistent with the primary purpose of the bill under consideration 

and, thus, non-germane under House Rule XVI-7. 

I yield back the balance of my time. 

Mr. SMITH. Does the gentleman from California wish to be heard 

on the point of order? 

Mr. SCHIFF. I do, Mr. Chairman. 

Mr. SMITH. The gentleman is recognized. 

Mr. SCHIFF. And I understand that the concept of germaneness 

in this hearing has been somewhat malleable, but whereas the PATRIOT bill provided this grant of citizenship to the families of 

those who were lost on 9/11, and this merely extends the date in 

which you can apply for that citizenship, it’s pretty directly related 

to the PATRIOT bill and changes that were made specifically in 

the PATRIOT bill. It’s hard to imagine if it’s not germane to the 

reauthorization of the PATRIOT bill what it would be germane to. 

So I would urge the Chair to reject the point of order. 

Mr. WEINER. Mr. Chairman? 

368

Mr. SCHIFF. And I’d yield the balance of my time to the gentleman from New York. 

Mr. WEINER. I’d just like to be heard on the point of order. Previously, Mr. Hostettler offered an amendment dealing with immigration matters that were not within the purview of the bill. Since 

he was recognized before it could be deemed to be out of order, although he withdrew the amendment, it was considered by this 

Committee. I would deem that the door has now been open for 

similar amendments that deal with immigration matters, which is 

something that I think whether we open it or not, we certainly 

have an opportunity here to rectify an inequity and perhaps, you 

know, move the—further kick the can down the field on whether 

or not this is germane. But certainly the Hostettler amendment 

considered an immigration matter that was not in the Sensenbrenner bill. 

And I would just reiterate something else. You know, the notice 

on this hearing said we were reauthorizing the PATRIOT Act. The 

bill that we’re considering is called the PATRIOT Act Reauthorization Act. The memo that accompanied this debate is called the reauthorization of the PATRIOT—refers to it as the reauthorization 

of the PATRIOT Act. So I would argue that it is germane because 

the PATRIOT Act spoke to this. 

Mr. SMITH. The Chair is prepared to rule. First of all——

Ms. JACKSON LEE. Mr. Chairman, I’d like to speak to the point 

of order. 

Mr. SMITH. Does the gentleman from California wish to yield to 

the gentlewoman from Texas? 

Ms. JACKSON LEE. I can strike the last word. 

Mr. SCHIFF. Yes, Mr. Chairman, I’d be happy to yield. 

Ms. JACKSON LEE. I thank the distinguished gentleman from 

California, and I rise to support his amendment and to make a 

point to the point of order, Mr. Chairman. In particular, might I 

say forthrightly that a point of order, that the—it can be waived, 

and I would argue that Mr. Schiff’s point that this is not so much 

an immigration amendment as it is a procedural, that it asks for 

an extension, the good will that can generate from providing for 

children who suffered the tragic loss on 9/11 and, therefore, were 

given citizenship or were to be given citizenship, as were citizenship given to adult spouses, and now that they have not been able 

to fall under that time frame it is merely procedural. And I think 

that this Committee could yield to the procedural point and not 

consider this an immigration point. It is necessary, I think, if we 

are to be, one, a country of laws and immigrants or immigration, 

a country of laws and liberty, that we make good on our promise. 

And this amendment makes good on our promise, and I would 

argue that Mr. Schiff’s amendment be made in order because it is 

a procedural amendment, it is not an immigration amendment. 

And I yield back my time. 

Mr. SMITH. The Chair is prepared to rule. For two reasons, this 

particular amendment is not germane. First of all, when an amendment is offered and withdrawn, that does not open the door to similar amendments. Second of all, when an amendment deals with a 

subject that is not under consideration, it’s in violation of House 

Rule XVI, and that is how I see it. The amendment is not germane, 

and are there any other amendments? 

369

Are there any other amendments? The gentleman from Virginia, 

Mr. Scott, is recognized. 

Mr. SCOTT. Mr. Chairman, I have an amendment at the desk, 

Scott 029, additional requirements for multi-point electronic surveillance under FISA. 

Mr. SMITH. The clerk will read the amendment. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Scott of 

Virginia. Add at the end the following: Section 9. Additional requirement for multi-point electronic surveillance under FISA. Section 105(c) of the Foreign Intelligence Surveillance Act of 1978, 50 

U.S.C. 1805(c), is amended, before the semicolon at the end of paragraph (1)(e) the following: :, and, in circumstances where the nature and location of each of the facilities or places at which the surveillance will be directed is unknown when the order is issued, that 

surveillance may be directed at a place or a facility only for such 

time as the applicant believes that such facility or place is being 

used or is about to be used by the target of the surveillance. 

[The amendment of Mr. Scott follows:] 

370

1

H.L.C.

AMENDMENT TO

OFFERED BY MR. SCOTT OF VIRGINIA

Add at the end the following:

1 SEC. 9. ADDITIONAL REQUIREMENTS FOR MULTI-POINT

2 ELECTRONIC SURVEILLANCE UNDER FISA.

3 Section 105(c) of the Foreign Intelligence Surveil4 lance Act of 1978 (50 U.S.C. 1805(c)) is amended before

5 the semicolon at the end of paragraph (1)(E) the fol6 lowing: ‘‘, and, in circumstances where the nature and lo7 cation of each of the facilities or places at which the sur8 veillance will be directed is unknown when the order is

9 issued, that surveillance may be directed at a place or fa10 cility only for such time as the applicant believes that such

11 facility or place is being used, or is about to be used, by

12 the target of the surveillance’’.


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Mr. SMITH. The gentleman from Virginia is recognized for 5 minutes to explain his amendment. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Chairman, this is the ascertainment requirement for a roving wiretap. When you get a roving wiretap, you get a wiretap 

against the person, and you can place the bug wherever that person may be using the phone. This amendment requires that in a 

FISA wiretap—and remember, under FISA you don’t need probable 

cause of a crime. You just need probable cause that the person is 

an agent of a foreign government and you might get some—any 

kind of foreign intelligence which could be a trade deal or anything 

else. No crime involved. 

This amendment requires that in a FISA wiretap, the Government has to have good faith that the target of the wiretap is actually using the phone or computer during the time it’s being surveyed. When the target leaves the building, you got to stop listening. 

Now, this is similar to the ascertainment requirement of roving 

wiretaps in criminal cases because when the phone or computer 

surveilled could be that of an innocent person, next-door neighbor, 

acquaintance, or anybody else, it could be the pay phone on the corner, it could be the phone at the country club. All this amendment 

requires is that it be ascertained that the target is actually there 

before you start listening. And if the target leaves, you stop listening. 

This requirement would not only protect the privacy of innocent, 

non-involved third parties who may be U.S. citizens, but would also 

discourage the misuse of the authority to bypass traditional law enforcement procedures by using the FISA wiretap to place a bug 

somewhere where you actually want to listen to somebody else. 

This says if you’re going to listen to somebody on a roving wiretap 

that the person you listen to is actually the target of the—of the 

wiretap. And I would hope that we would adopt the amendment. 

Mr. SMITH. The gentleman from California, Mr. Issa, is recognized. 

Mr. ISSA. Thank you, Mr. Chairman. And I guess this is a little 

bit of deja vu all over again. One of the reasons that it is so important to remain as it is is that this roving wiretap was envisioned 

more than any other single area to deal with the disposable cellular phone wiretap situation. Now, just because you stop using one 

of 5, 10, 15, 20 cellular phones doesn’t mean you won’t use it again 

the next minute. So every single time a cellular phone in which the 

agents have no idea where that cellular phone is until it turns on 

and they have no idea who’s on it until they hear that it’s being 

talked on, they’re not in a position to say we’re not going to. 

Now, as a practical matter, we are, in fact, looking after just 10 

days of a movement to another phone. So when they go from phone 

A to phone B, even if they may go back to phone A, they’re still 

in front of a judge within 10 days. So there is a review process envisioned here. There’s no question that I appreciate the gentleman’s concern. But I think that his amendment would clearly undo 

exactly what we need to maintain. 

Now, having said that, our review of the actual use has found no 

abuses, but I think that it’s very clear here that the intent of the 

legislation 4 years ago, the intent of the reauthorization today reVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00375 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1
372

quires that you be able to figure out who’s on cell phone number 

2, 3, 4, 5, 6, 7, and 8. Even though that person may not have been 

on them in 30 days, there is no reason to believe, particularly if 

you don’t know where it is until it turns on, that it’s not your suspect again. 

With that, I would yield back. 

Mr. SCOTT. Would the gentleman yield? 

Mr. ISSA. I would certainly yield. 

Mr. SCOTT. Should the FBI listen if they actually do not believe 

that the phone is going to be used by the target? 

Mr. ISSA. You know, I think, reclaiming my time, as the gentleman knows, that when a tap detects something and they’re out—

you know, just like on the television, when they’re out there in the 

truck and they’re digitally recording this, and they discover it’s not 

their suspect, they tune out, they’re done. That is pretty standard. 

And there has—there is review of any material that would be captured in which it was clear that for some period of time they listened beyond knowing that it wasn’t their suspect. So that’s well 

protected within the law, certainly well protected by the 10-day judicial review of moving on wiretaps. 

But, yes, as a practical matter, if you’ve got cell phone number 

6 and it hasn’t been used in 4 days and it gets turned back on, you 

do have to find out who’s speaking on it, and you can’t do that by 

saying, well, I can’t do it until I know that it’s our suspect. It’s just 

the opposite. You can’t stop listening until you know it’s not your 

suspect. 

And with that I’d yield back. 

Mr. CONYERS. Mr. Chairman? 

Mr. SMITH. Any other members who wish to be heard? The gentleman from Michigan, Mr. Conyers, is recognized. 

Mr. CONYERS. Mr. Chairman, the gentleman from California’s 

point is in no way in conflict with the amendment of the gentleman 

from Virginia. If you have a good faith—if a phone goes off for a 

while, it doesn’t mean that you can’t continue to tap it when it goes 

back on. You know it either is or isn’t. And that is part of a goodfaith belief that the target is actually using the phone during the 

time it’s being surveilled. 

So the dramatic example pointed out by my friend from California in no way contradicts the requirement of having a good-faith 

belief, which is provided in the amendment of the gentleman from 

California. 

Mr. SCOTT. Would the gentleman yield? 

Mr. CONYERS. Of course. 

Mr. SCOTT. Thank you, and I thank the gentleman for yielding. 

This is the same thing they do in Title 3 wiretaps. They have to 

ascertain that the person is actually using the phone. Otherwise, 

they have to stop listening. 

These phones—this is particularly egregious because you start 

this thing out without any probable cause of a crime. You can place 

these roving wiretaps wherever. 

Mr. ISSA. If the gentleman would yield, I would respectfully disagree. These are similar but not the same as Title 3. In fact, the 

PATRIOT Act did not modify these. What you’re seeking to do here 

is to modify language that was not created by the PATRIOT Act. 

The truth is that what we’re relying on is a standard that existed 

373

prior to the PATRIOT Act when it came to how you would monitor. 

We did go to multiple and roving, but we didn’t change the underlying requirement for minimization. 

Mr. SMITH. The gentleman from Michigan has the time. 

Mr. SCOTT. Would the gentleman from Michigan yield? 

Mr. CONYERS. Certainly. 

Mr. SCOTT. Was there—my understanding was that there was no 

minimization requirement in the PATRIOT Act. We created a roving wiretap, and all this is is a minimization requirement to ascertain that the person that you’re trying to surveill is the only actually using the phone. Otherwise, without this amendment, when 

the person leaves the premises, you keep listening in. And, you 

know, if that’s your point, then just say so. You’re using it to listen 

in to anybody that may use the pay phone on the corner. 

Mr. ISSA. If the gentleman from Michigan would yield? 

Ms. LOFGREN. Would the gentleman yield? 

Mr. CONYERS. Just a moment. Mr. Scott said that if you didn’t 

have a good-faith belief, you couldn’t do it. But if you do have a 

good-faith belief, which is all he’s asking, that’s about as low a 

threshold as you can get that it’s appropriate. If the phone’s been 

cut off for a while and it goes back on and you’re listening, and it 

turns out that it’s the same person that was being surveilled, then 

you’re home free. But good faith—I don’t know—I don’t know how 

we could be talking about something other than good faith. 

I yield to the gentleman from Virginia. 

Mr. SCOTT. Again, I’d just say if you do not believe that the person is—the target is using the phone, you ought to stop listening. 

This says if the applicant believes that the facility or place is being 

used or about to be used by the target of surveillance, that you believe that you’re listening to the target. 

Mr. ISSA. If the gentleman from Michigan would yield. 

Mr. SCOTT. If you don’t believe——

Ms. LOFGREN. Could the gentleman yield——

Mr. SCOTT. If you’re listening to everybody, just say so. 

Mr. CONYERS. The gentlelady from California first, sir, and——

Ms. LOFGREN. I think my colleague from California has indicated 

that magically the minimization rules in criminal law have been 

transported without language to that effect, as far as I can recall, 

into the PATRIOT Act. And I think, you know, it’s possible—I don’t 

know—that the Justice Department has, in fact, applied the minimization rules to these FISA taps. But if that’s true—that would 

be good—we ought to put that into statute and not allow regulatory 

schemes that could change depending on who is running the Justice Department to govern it. And it seems to me that, you know, 

this—that’s what this amendment would do. We could probably 

change the words to some extent if we wanted to, but I think basically that’s the intent of this, and it’s an important thing to do. 

Mr. ISSA. If the gentleman would yield briefly. 

Ms. LOFGREN. And I would yield back to——

Mr. CONYERS. Of course, I yield to my friend from California. 

Mr. ISSA. I would say that I’d be happy to readdress this after 

the gentleman views the classified minimization that already exists 

under FISA so that you can have the comfort that, prior to the PATRIOT Act, under the existing statute for FISA we already have 

its own minimization language and that we should rely on that, 

374

and I would ask us to vote against this. But I certainly, after 

you’ve reviewed that, would be happy to——

Mr. SMITH. The gentleman’s time has expired. The question occurs on the amendment. All in favor say aye? All opposed, nay? 

The nays have it. The amendment is not agreed to. Are there——

Mr. SCOTT. A recorded vote. 

Mr. SMITH. A recorded vote has been requested. The clerk will 

call the roll. 

The CLERK. Mr. Hyde? 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. Mr. Coble? 

[No response.] 

The CLERK. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

[No response.] 

The CLERK. Mr. Bachus? 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

375

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

[No response.] 

The CLERK. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. [Presiding.] Members in the chamber who wish to cast or change their votes? The gentleman from 

North Carolina, Mr. Coble. 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Chairman SENSENBRENNER. The gentleman from Utah, Mr. Cannon. 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Goodlatte. 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 13 ayes and 23 noes. 

Chairman SENSENBRENNER. The amendment is not agreed to. 

Are there further amendments? 

Mr. SCHIFF. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Schiff. 

376

Mr. SCHIFF. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. America to H.R. 3199, offered by Mr. Schiff of California. At the end add the following: Section. Oversight of National 

Security Letters. (a) Title 18, United States Code, Section 2709(e) 

of Title 18, United States Code is amended by striking——

Mr. SCHIFF. Mr. Chairman, I request that the amendment be 

deemed as read. 

Chairman SENSENBRENNER. Without objection, so ordered. 

[The amendment of Mr. Schiff follows:] 

377

1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MR. SCHIFF OF CALIFORNIA

At the end, add the following:

1 SECTION ll. OVERSIGHT OF NATIONAL SECURITY LET2 TERS.

3 (a) TITLE 18, UNITED STATE CODE.—Section

4 2709(e) of title 18, United States Code, is amended by

5 striking ‘‘Requirement that certain congressional bodies

6 be informed’’ and inserting ‘‘REPORTING.—(1)’’, and by

7 inserting at the end the following:

8 ‘‘(2) In April of each year, the Attorney Gen9 eral shall issue a public report setting forth with re10 spect to the preceding calendar year—

11 ‘‘(A) the aggregate number of requests

12 made under subsection (b) of this section;

13 ‘‘(B) the aggregate number of requests

14 that were complied with;

15 ‘‘(C) the aggregate number of U.S. persons

16 with regard to whom information or records

17 were requested under subsection (b) of this sec18 tion;

19 ‘‘(D) for each individual request made

20 under subsection (b) of this section;


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2

H.L.C.

1 ‘‘(i) the approximate number of per2 sons or entities with regard to whom infor3 mation or records were requested; and

4 ‘‘(ii) the approximate number of

5 records implicated by each request; and

6 ‘‘(E) the aggregate number of times that

7 information or records obtained under sub8 section (b) of this section or any information

9 derived therefrom were offered in a criminal

10 proceeding.’’.

11 SEC. ll. OVERSIGHT OF AUTHORITY TO DELAY NOTICE

12 OF SEARCH WARRANTS.

13 (a) TITLE 18, UNITED STATE CODE.—Section 3103a

14 of title 18, United States Code, is amended by adding at

15 the end the following:

16 ‘‘(c) REPORTS.—

17 ‘‘(1) IN GENERAL.—Every 6 months, the Attor18 ney General shall submit a report to Congress sum19 marizing, with respect to warrants under subsection

20 (b), the requests made by the Department of Justice

21 for delays of notice and extensions of delays of no22 tice during the previous 6-month period.

23 ‘‘(2) CONTENTS.—Each report submitted under

24 paragraph (1) shall include, for the preceding 6-

25 month period—


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379

3

H.L.C.

1 ‘‘(A) the number of requests for delays of

2 notice with respect to warrants under sub3 section (b), categorized as granted, denied, or

4 pending; and

5 ‘‘(B) for each request for delayed notice

6 that was granted, the number of requests for

7 extensions of the delay of notice, categorized as

8 granted, denied, or pending.

9 ‘‘(3) PUBLIC AVAILABILITY.—The Attorney

10 General shall make the report submitted under para11 graph (1) available to the public.’’.

12 SEC. ll. OVERSIGHT OF FISA PHYSICAL SEARCHES.

13 Section 306 of the Foreign Intelligence Surveillance

14 Act of 1978 (50 U.S.C. 1826) is amended to read as fol15 lows:

16 ‘‘CONGRESSIONAL OVERSIGHT

17 ‘‘SEC. 306. (a) On a semiannual basis, the Attorney

18 General shall, with respect to all physical searches con19 ducted pursuant to this title, fully inform—

20 ‘‘(1) the Select Committee on Intelligence of the

21 Senate;

22 ‘‘(2) the Committee on the Judiciary of the

23 Senate;

24 ‘‘(3) the Permanent Select Committee on Intel25 ligence of the House of Representatives; and


3199LL.AAD
380

4

H.L.C.

1 ‘‘(4) the Committee on the Judiciary of the

2 House of Representatives.

3 ‘‘(b) On a semiannual basis, the Attorney General

4 shall provide to the Committees on the Judiciary of the

5 House of Representatives and the Senate a report setting

6 forth with respect to the preceding six-month period—

7 ‘‘(1) the total number of applications made for

8 orders approving physical searches under this title;

9 ‘‘(2) the total number of such orders either

10 granted, modified, or denied;

11 ‘‘(3) the number of physical searches which in12 volved searches of the residences, offices, or personal

13 property of United States persons, and the number

14 of occasions, if any, where the Attorney General pro15 vided notice pursuant to section 305(b);

16 ‘‘(4) the total number of such orders that are

17 related to an investigation of—

18 ‘‘(A) terrorism-related offenses;

19 ‘‘(B) drug-related offenses; and

20 ‘‘(C) regulatory violations;

21 ‘‘(5) the total number of such orders that were

22 involved in a—

23 ‘‘(A) terrorism prosecution; and

24 ‘‘(B) other criminal prosecution; and


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5

H.L.C.

1 ‘‘(6) the total number of such orders that are

2 involved in ongoing criminal investigations.

3 ‘‘(c) PUBLIC AVAILABILITY.—(1) The Attorney Gen4 eral shall make the information submitted under sub5 section (b)(5) available to the public.

6 ‘‘(2) The Attorney General shall declassify and pro7 vide information to the public regarding cases that have

8 resulted in criminal prosecutions or have otherwise been

9 discontinued five years after the surveillance concludes.

10 The presumption of release may be rebutted upon a par11 ticularized showing to the Foreign Intelligence Surveil12 lance Court that this particular surveillance should not be

13 made public because similar surveillance on the same tar14 get is continuing or that release of the information would

15 compromise sources and methods. The Foreign Intel16 ligence Surveillance Court may release all of the surveil17 lance, release redacted portions, or keep the existence of

18 the surveillance secret.’’.

19 SEC. ll. PUBLIC REPORT.

20 Section 3126 of title 18, United States Code, is

21 amended—

22 (1) in the matter preceding paragraph (1), by

23 striking ‘‘law enforcement agencies of the Depart24 ment of Justice’’ and inserting ‘‘attorneys for the

25 Government’’;


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6

H.L.C.

1 (2) in paragraph (4), by striking ‘‘and’’ at the

2 end;

3 (3) in paragraph (5), by striking the period and

4 inserting ‘‘; and’’;

5 (4) in the matter preceding paragraph (1), by

6 striking ‘‘The Attorney General’’ and inserting the

7 following: ‘‘(a) REPORT TO CONGRESS.—The Attor8 ney General’’; and

9 (5) by adding at the end the following:

10 ‘‘(6) whether the application for the order and

11 the applications for any extensions were granted as

12 applied for, modified, or denied;

13 ‘‘(7) the specific types of dialing, routing, ad14 dressing, or signaling information sought in the ap15 plication and obtained with the order; and

16 ‘‘(8) a summary of any litigation to which the

17 Government is or was a party regarding the inter18 pretation of the provisions of this chapter.

19 ‘‘(b) PUBLIC REPORT.—The Attorney General shall

20 annually make public a full and complete report con21 cerning the number of applications for pen register orders

22 and orders for trap and trace devices applied for pursuant

23 to this chapter and the number of such orders and exten24 sions of such orders granted or denied pursuant to this

25 chapter during the preceding calendar year. Such report


3199LL.AAG
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7

H.L.C.

1 shall include a summary and analysis of the data required

2 to be reported to Congress under subsection (a).’’.

3 SEC. ll. OVERSIGHT OF ACCESS TO BUSINESS RECORDS.

4 Section 502 of the Foreign Intelligence Surveillance

5 Act of 1978 (50 U.S.C. 1862) is amended to read as fol6 lows:

7 ‘‘CONGRESSIONAL OVERSIGHT

8 ‘‘SEC. 502. (a) On a semiannual basis, the Attorney

9 General shall, with respect to all requests for the produc10 tion of tangible things under section 501, fully inform—

11 ‘‘(1) the Select Committee on Intelligence of the

12 Senate;

13 ‘‘(2) the Committee on the Judiciary of the

14 Senate;

15 ‘‘(3) the Permanent Select Committee on Intel16 ligence of the House of Representatives; and

17 ‘‘(4) the Committee on the Judiciary of the

18 House of Representatives.

19 ‘‘(b) On a semiannual basis, the Attorney General

20 shall provide to the Committees on the Judiciary of the

21 House of Representatives and the Senate a report setting

22 forth with respect to the preceding six-month period—

23 ‘‘(1) the total number of applications made for

24 orders approving requests for the production of tan25 gible things under section 501;


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8

H.L.C.

1 ‘‘(2) the total number of such orders either

2 granted, modified or denied;

3 ‘‘(3) the total number of such orders sought

4 from—

5 ‘‘(A) travel-related entities;

6 ‘‘(B) medical-related entities;

7 ‘‘(C) firearms-related entities; and

8 ‘‘(D) library or bookseller entities;

9 ‘‘(4) the total number of such orders that are

10 related to an investigation of—

11 ‘‘(A) terrorism-related offenses;

12 ‘‘(B) drug-related offenses; and

13 ‘‘(C) regulatory violations;

14 ‘‘(5) the total number of such orders that were

15 involved in a—

16 ‘‘(A) terrorism prosecution; and

17 ‘‘(B) other criminal prosecution;

18 ‘‘(6) the total number of such orders that are

19 involved in ongoing criminal investigations; and

20 ‘‘(7) the aggregate number of United States

21 persons with regard to whom information was ob22 tained using such orders.

23 ‘‘(c) PUBLIC AVAILABILITY.—(1) The Attorney Gen24 eral shall make the information submitted under sub25 section (b)(5) available to the public.


3199LL.AAI
385

9

H.L.C.

1 ‘‘(2) The Attorney General shall declassify and pro2 vide information to the public regarding cases that have

3 resulted in criminal prosecutions or have otherwise been

4 discontinued five years after the surveillance concludes.

5 The presumption of release may be rebutted upon a par6 ticularized showing to the Foreign Intelligence Surveil7 lance Court that this particular surveillance should not be

8 made public because similar surveillance on the same tar9 get is continuing or that release of the information would

10 compromise sources and methods. The Foreign Intel11 ligence Surveillance Court may release all of the surveil12 lance, redacted portions, or keep the existence of the sur13 veillance secret.’’.


3199LL.AAJ
386

Chairman SENSENBRENNER. The gentleman from California is 

recognized for 5 minutes. 

Mr. SCHIFF. Mr. Chairman, I view this amendment as a counterpart of the 10-year sunset, and that is, because we have approved 

such a long sunset, this would impose more substantial reporting 

from the Department of Justice to the Committee and to the public 

about the frequency in which certain of these PATRIOT Act provisions are being utilized, like the national security letters, like the 

delayed notification of search warrants, the 215 section items. And 

most of what is requested in this additional reporting are things 

akin to what the Chair requested of the Department, but this 

would routinize the supplying of this information to the Committee 

and, where possible, to the public. In most places what we ask for 

are simply the aggregate number of the requests, which doesn’t reveal much about the Department of Justice’s investigations. But it 

does give the public a sense of how often these tools are being used. 

And I think that’s important. 

I think when the Attorney General, for example, decided to let 

the public know that the library provision had never been used, he 

did so for good reason: to assuage concerns that willy-nilly the government was looking for library records. 

Similarly, I think this amendment gives us greater accountability 

in provisions that will not sunset for 10 years, or not sunset at all, 

about how often they’re being used should pose no concern in terms 

of the nature of the investigation, doesn’t require any revelation of 

any of the details of an investigation, but should institutionalize 

more frequent reporting. As the Chairman observed in the early 

part of the last Attorney General’s reign, it was difficult to get information from the Department of Justice. I found in my dealings 

with the current Attorney General a much improved situation. But 

given that Attorney Generals change and our current one may be 

elevated to the Supreme Court, it would be wise, I think to institutionalize this kind of reporting requirement, and I would urge my 

colleagues to join me in support this amendment. 

Chairman SENSENBRENNER. Does the gentleman yield back? 

Mr. SCHIFF. Yes, Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from Florida, Mr. 

Feeney. 

Mr. FEENEY. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. FEENEY. Mr. Chairman, once again I raise the same objections. What we are doing is basically a blanket requirement in this 

case that the Federal counterintelligence agencies during intelligence and spy investigations be forced to release to Congress as 

a whole and at times to the public information about very sensitive 

investigations. 

Now, by the way, Congress has an oversight role here to play. 

Every 6 months the Justice Department has got to release a comprehensive report of every one of these national security letters. 

They’re available to the oversight Committee with charge of this, 

which is the Intelligence Committee. 

I can guarantee you that every one of our enemies, both foreign 

countries and foreign organizations that would like to do us harm, 

will be very sophisticated in reviewing any information that we’re 

387

forced to provide. Yes, Attorney General Gonzales believed that it 

was appropriate and safe to release information about the use of 

library searches. But there may be times when it simply is not 

safe. This blanket requirement I think would endanger the need to 

protect the level and the amount and the details of national security investigations, and for the same reasons as I opposed the 

former disclosure requirements, I would suggest that we vote down 

this amendment as well. 

I yield back my time. 

Ms. SA ́ NCHEZ. Mr. Chairman? 

Chairman SENSENBRENNER. The gentlewoman from California, 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. I move to strike the last word. 

Chairman SENSENBRENNER. The gentlewoman is recognized for 5 

minutes. 

Ms. SA ́ NCHEZ. Thank you, Mr. Chairman. I would yield to my colleague from California, Mr. Schiff. 

Mr. SCHIFF. I thank the gentlewoman for yielding. 

I was with the Justice Department for 6 years, and that doesn’t 

make me an authority on the Justice Department, but I guess we 

have a lot of non-authorities on this Committee and I fit right in. 

Yes, there is some conceivable interest in quarters around the 

world about how our Justice Department operates. But, you know, 

there’s a lot of interest in it right here at home among ordinary, 

law-abiding Americans, who would like to know how often our Government is using these extraordinary tools and be assured that 

they’re not being overutilized. 

Much of the information we’re requesting is, frankly, far less detail than the Chairman has requested upon occasion from the Department. And I don’t know what my colleague’s experience has 

been far on the other side of this particular aisle, but over the last 

4 years, particularly in the early couple years, when I tried to get 

information from DOD or DOJ, it was often excruciatingly difficult. 

And I think there is a strong national interest in knowing how 

often these sections are utilized. And, again, we’re talking about in 

most cases the aggregate number of requests, not who they’re being 

made of or the nature of the investigation, but this is information 

that I think we in Congress ought to have and that we generally 

don’t have. It’s information, I think, that the American people 

ought to have to assure them that these authorities are not being 

overutilized. And I would certainly like to see us not put our head 

in the sand and not say, you know, Justice Department, take these 

authorities, do with them what you will, we don’t really want to 

know. We don’t want to know. 

And that I think is effectively what we’re saying here right now. 

I’d like to know, I think a lot of us would like to know, and I think 

we can know and the American people can know without any sacrifice to the nature of these investigations. Frankly, if I were still 

in the Department, I would err on the side of letting the public 

know when it poses no obstacle to investigations. I think there’s a 

valuable public purpose in letting the American people know we’re 

safeguarding the very purpose for which we’re fighting this war on 

terrorism, which is to preserve our way of life and our freedoms. 

With that, Mr. Chairman, I would yield back to my colleague. 

Mr. ISSA. Would the gentlelady yield? 

388

Ms. SA ́ NCHEZ. I will. 

Mr. ISSA. I thank the gentlelady. 

I truly appreciate the gentleman’s concern. It should be noted, 

though, that the Permanent Select Committee on Intelligence of 

the House of Representatives gets every bit of the information that 

you’re now seeking. So with all due respect, what we’re really dealing with is whether we’re going to downgrade it from the Select Intelligence Committee to the House as a whole, to the people and 

the enemy at large. And in fairness, the release from the Attorney 

General that they had never used the library provision I hope is 

the last time that’s ever released to the public. I do not want and 

I think we all do not want to have a confident built up by the bad 

guys that we, in fact, will allow them to do exactly what they did 

in preparation for 9/11 and use libraries without any risk of being 

observed. 

Ms. SA ́ NCHEZ. Reclaiming my time, I’d like to yield back to the 

gentleman from California. 

Mr. SCHIFF. I thank the gentlewoman for yielding. I guess I disagree with my colleague who thinks it was poor judgment of the 

prior Attorney General to let the American people know this section had not been used and, in fact, would be very rarely used. The 

fact of the matter is, if you’re a bad guy, you ought to know that 

there are grand jury subpoenas that can be used to get these 

records, and you can’t be assured that they won’t be sought. 

But in terms of whether the Congress should know, we didn’t 

know how often that provision had been used. I would have liked 

to have known that before the Attorney General made the decision 

to notify the public. And, indeed, much of the time when we seek 

in classified form—this has been my experience. When I’ve sought 

classified hearings on the way certain authorities have been used, 

I’ve gotten less information than was later disclosed publicly by the 

Justice Department. And that’s excruciatingly frustrating. 

So this would give simply a little greater detail to some of the 

reporting requirements that are already in the PATRIOT bill. 

We’re simply expanding some of the notice provisions about how 

often the authorities are being used, and really not going beyond 

that, and I thank the gentlewoman for yield and yield back the balance of my time. 

Mr. NADLER. Mr. Chairman? 

Ms. SA ́ NCHEZ. And I yield back. 

Chairman SENSENBRENNER. For what purpose does the gentleman from New York seek recognition? 

Mr. NADLER. Strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. NADLER. Mr. Chairman, I’m not going to take 5 minutes. I 

just want to say I certainly agree and commend the gentleman—

the amendment offered by the gentleman from California, and I 

commend him for offering it, and it’s very simple. The United 

States is a free country. Every action of Government is taken in 

the name of the people of the United States. We ought to know various things that are being done. The amendment the gentleman offers is simple: Report to Congress and to the American people. 

The idea that terrorists could profit from this information is 

quite far-fetched. To simply say the number of—the number of naVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00392 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1
389

tional security letters, the number of 215 orders, no terrorists are 

going to benefit from that. But this Congress may benefit from it, 

the American people may benefit from it. We ought to know about 

this increasingly secret Government of ours. And I urge the adoption of the amendment. 

Mr. SCHIFF. Would the gentleman yield? 

Mr. NADLER. Sure. 

Mr. SCHIFF. Mr. Chairman, I’m going to resort to the most powerful argument I can now make in favor of this amendment, indeed 

the most powerful argument I’ve made in favor of any amendment 

today, and that is, if adopted, this will be my last amendment. 

[Laughter.] 

I can’t be more persuasive than that, Mr. Chairman, and I would 

be happy to yield back the balance of my time. 

Chairman SENSENBRENNER. Does the gentleman from New York 

yield back? 

Mr. NADLER. I will yield to the gentleman from California. 

Mr. ISSA. Thank you for yielding. I will give you most of it right 

here because, as I read further through the actual criminal procedure, after it says that the Federal Bureau of Investigation shall 

fully inform the Permanent Select Committee on Intelligence of the 

House of Representatives, it then says and the Select Intelligence 

Committee of the Senate and the Committee of the Judiciary of the 

House of Representatives and its counterpart in the Senate. 

So, believe it or not, we haven’t gotten to the public, but it is, 

in fact, a requirement to come to this Committee, and we do have 

that information, so hopefully that will give you an opportunity to 

look at it in a fully—full compliance that you may not have been 

aware you had. 

Mr. SCHIFF. Will the gentleman yield further? 

Mr. NADLER. Yes, I’ll be happy to yield. 

Mr. SCHIFF. There’s no rebuttal to my most persuasive point. If 

you accede, this is the last request. 

Mr. NADLER. Reclaiming my time, the unstated sentence, of 

course—and I do not attribute this to the gentleman; I just assume 

he means it—is that if this amendment doesn’t pass, he may have 

six more amendments. 

I yield back. 

Chairman SENSENBRENNER. The question is on agreeing to the 

amendment offered by the gentleman from California, Mr. Schiff. 

Those in favor will say aye? Opposed, no? 

The noes appear to have it. 

Mr. SCHIFF. Mr. Chairman, I request a recorded vote. 

Chairman SENSENBRENNER. A recorded vote is ordered. Those in 

favor of the Schiff amendment will as your names are called answer aye, those opposed no, and the clerk will call the roll. 

The CLERK. Mr. Hyde? 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. Mr. Coble? 

[No response.] 

The CLERK. Mr. Smith? 

[No response.] 

The CLERK. Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. Mr. Goodlatte? 

390

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

[No response.] 

The CLERK. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

[No response.] 

The CLERK. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

[No response.] 

The CLERK. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. Mr. Meehan? 

[No response.] 

391

The CLERK. Mr. Delahunt? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler? 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their votes? The gentleman from Utah, Mr. Cannon. 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. 

Chairman SENSENBRENNER. The gentleman from Indiana, Mr. 

Hostettler. 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. 

Chairman SENSENBRENNER. The gentleman from Alabama, Mr. 

Bachus. 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. 

Chairman SENSENBRENNER. The gentleman from North Carolina, 

Mr. Coble. 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their votes? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 15 ayes and 21 noes. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. 

Are there further amendments? 

Ms. JACKSON LEE. Mr. Chairman? 

Chairman SENSENBRENNER. The gentlewoman from Texas, Ms. 

Jackson Lee. 

Ms. JACKSON LEE. Mr. Chairman, I have an amendment at the 

desk, 132. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 3199, offered by Ms. Jackson 

Lee of Texas. At the end of Section 8, page 9, line 11, add the following new subsection: (e) Exclusion of Medical Records. Section 

501(a)(1) of the Foreign Intelligence——

Ms. JACKSON LEE. Mr. Chairman, I ask unanimous consent that 

the amendment be considered as read.

392

Chairman SENSENBRENNER. The gentleman from North Carolina 

reserves a point of order, and subject to his reservation, without objection, the further reading is dispense with. 

[The amendment of Ms. Jackson Lee follows:]

393

1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MS. JACKSON-LEE OF TEXAS

At the end of section 8 (Page 9, line 11), add the

following new subsection:

1 (e) EXCLUSION OF MEDICAL RECORDS.—Section

2 501(a)(1) of the Foreign Intelligence Surveillance Act of

3 1978 (50 U.S.C. 1861(a)(1)) is amended by inserting

4 after ‘‘other items’’ the following: ‘‘but excluding medical

5 records’’.


3199MM.AAB
394

Chairman SENSENBRENNER. The gentlewoman from Texas is recognized for 5 minutes. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. I know 

a few moments ago, maybe minutes or hours ago, one of my colleagues wanted to ask the question whether or not any provisions 

of the PATRIOT Act could be considered unconstitutional. We’ve 

had a number of debates on the floor of the House that seemingly 

have drawn the support of Republicans and Democrats, and I 

would hope that this amendment would reflect the same kind of 

concern for the privacy of Americans. 

We certainly know that one provision allows the seizure of 

records or any tangible thing, and we have seen America’s libraries 

and librarians raise their voices in opposition. We’ve also seen the 

work of a collective group of individuals who respect the privacy of 

Americans alongside of our obligation of homeland security. 

Our friend and colleague, Congressman Sanders, has taken this 

issue of library invasion of privacy and has received the recognition 

that it is a problem that should be fixed. In fact, as it relates to 

libraries, there have been over 200 formal and informal requests 

for materials, including 49 requests from Federal offices. 

This amendment deals specifically with an aspect of America’s 

privacy that most Americans hold very dear, and that is medical 

records. And the definition of this section makes it clear that these 

records or any tangible thing can be, if you will, seized. It provides 

that the FBI intelligence investigators with a virtual blank check 

to seize medical records with effectively no public accountability. 

Section 215 has been known, as I’ve said, as dealing with library 

records. Part of Section 215 gives the FBI the ability to obtain a 

court order for any tangible things, including medical records, in an 

intelligence or terrorism investigation. Physicians and other medical professionals who receive 215 court orders are barred from telling patients or anyone else anything about the court order. What 

an absurdity. Your own personal private medical records, and the 

physician cannot tell you that your records are being seized. 

Furthermore, Section 215 court orders are not limited to a particular suspect. These requests for records need only be relevant to 

an investigation, meaning that patients who are not even the targets of an investigation will also have their information vacuumed 

up by the FBI. 

Mr. Chairman, so many of us have had to deal with our elder relatives in hospitals and nursing homes. You’re not even allowed to 

call on behalf of your relative because of the new laws that are governing hospitals governed or receiving Federal funds all over America unless you are so designated. Even these institutions cannot 

give you the status of your relative’s health condition, your child’s 

health condition, unless you have been so identified. But yet we’re 

allowing innocent persons to have their records seized. 

Let me give you an example and let me cite for you—the American Medical Association Board of Trustees in May 2005 shows us 

the impact. Even without hard data, it can be assumed the PATRIOT Act will cause some patients to avoid seeking care or to be 

less than forthcoming in a physician’s office. Quality of care may 

suffer. Unable to protest or even publicly acknowledge a disclosure, 

medical professionals stand to lose the trust and confidence of their 

patients and undermine the patient-physician relationship. 

395

What I am speaking about is the broad breadth of seizure, not 

a court-ordered seizure, not a probable cause seizure. I’m talking 

about random calling up saying I think I want to get this doctor’s 

records. 

For example, two physicians in Houston—this is an example, hypothetical—in Houston are competing for the same pool of patients. 

One calls the FBI and falsely tells the Bureau that his rival helped 

treat one of the 9/11 hijackers that had a throat infection. The FBI, 

which is still investigating 9/11 attacks, obtains a secret court 

order under 215 and gets the innocent doctor’s patients’ records. 

Has nothing to do with anything. But because of the reach of Section 215 isn’t limited to a particular suspect, the order applies to 

all of the doctor’s records. They come in, they cull all the records, 

they get every single patient’s record, launching separate investigations against every single patient who happens to be a patient of 

this doctor who may, for example, be from one of the so-called communities. Dozens of agents work the case. They go after many foolish leads, and it comes up with nothing. 

Mr. Chairman, my colleagues, this is a very narrow amendment 

that protects the privacy. It does not eliminate the opportunity 

under a more detailed, a more explanatory——

Chairman SENSENBRENNER. The gentlewoman’s time has expired. 

Ms. JACKSON LEE. It does not stop that. I ask my colleagues to 

support this amendment. 

Chairman SENSENBRENNER. Does the gentleman from North 

Carolina insist upon his point of order? 

Mr. COBLE. Mr. Chairman, I withdraw my point of order. 

Chairman SENSENBRENNER. Okay. The gentleman from California, Mr. Lungren. 

Mr. LUNGREN. Mr. Chairman, for the reasons already cited when 

we had another amendment that went to medical records and other 

things to be excluded from the reach of Section 215, I rise in opposition to this amendment. Once again we’ve talked about medical 

records, how they might be applicable in a particular situation. 

We’ve talked about anthrax. We’ve talked about other things. I 

don’t know if we need to belabor the point here. I think everybody 

knows what we’re talking about. 

Once again, remember the reach of 215. It’s a FISA court. You 

have to be investigating something that deals with foreign intelligence. That’s what we’re talking about. If anybody thinks that the 

Government is interested in rummaging through your medical 

records for no reason at all, I’ve never seen one example of it. We’re 

talking about something where people are trying to find something 

that is relevant to the investigation in a terrorism case. 

And, once again, we’re here because of terrorism. We’re here because of 9/11. We’re here because we need those investigative tools 

before the fact, not after the fact. Can we remember that as we 

look at these amendments? The difference between going in and 

doing a criminal investigation after the fact so that you can go and 

prosecute people versus trying to deter terrorist attacks, that’s 

what we’re talking about. London was a tremendous example of 

what we’re facing. And to somehow believe that we have the foresight to understand all circumstances where medical records would 

396

be irrelevant to these investigations is assuming an amount of hubris that I just don’t think we ought to. 

Once again, I will repeat, the 9/11 Commission criticized the 

Congress and the executive branch for a lack of foresight. They 

said a lack of creativity, not thinking outside the box. And here 

what we’re trying to do is get us back in the box saying the way 

that things were before 9/11 are the way that will allow us to be 

able to fight terrorism. It didn’t happen. It ain’t going to happen. 

And, frankly, there has been no proof whatsoever of abuse. Why we 

would take this potential investigative technique to be used to fight 

terrorism is beyond me. 

And with that, I would ask for a no vote and yield back the balance of my time. 

Ms. WATERS. Mr. Chairman? 

Chairman SENSENBRENNER. The gentlewoman from California, 

Ms. Waters. 

Ms. WATERS. Yes, Mr. Chairman, my colleague from California is 

using the same arguments he used earlier. They don’t sound any 

better now than they did then, and I’d yield the balance of my time 

to the gentlelady from Texas. 

Ms. JACKSON LEE. I thank the distinguished gentlelady, and I 

appreciate her amendment offered in the same spirit as this 

amendment. It seems that clarity still is not apparent even at this 

late hour. But I would just say to my distinguished colleague, it 

just overwhelms me to make such a broad statement. I love my 

country. I really do. I believe dearly in the Bill of Rights, and I believe dearly in our responsibility now in security and intelligence 

and homeland security. 

I might commend to him the 9/11 Commission in its broadness 

that clearly asked as we proceed to be precise in working towards 

laws that we also understand our commitment to liberty and justice and to limit the broadness of our reach that would undermine—undermine—our very efforts of securing intelligence. They 

talked about not intimidating different segments of the population, 

not stigmatizing religion. 

Obviously this is an effort to suggest that we narrow the efforts 

that we need to make in order to get the kind of right intelligence. 

And for my good friend to suggest that he’s never seen an abuse 

by this Government gives me a great deal of confusion. I’m completely baffled. I certainly read about it in the history books when 

Senator McCarthy held these kinds of hearings where everybody in 

America was claimed to be a communist. So I——

Mr. LUNGREN. Would the gentlelady yield on that point? 

Ms. JACKSON LEE. I really don’t understand—we do overreach in 

many instances, and it does not generate into anything. I will join 

my colleague at any moment to ensure that our law enforcement 

has the right tools. I only offer this amendment to my colleagues 

as my colleague has done—colleagues have done earlier in the day 

to simply say to narrow it. This provision in law is overbroad, this 

particular section. It has the potential to cause major violations of 

private rights guaranteed under the Fourth Amendment. It gives 

the Government far more authority to gather information about innocent Americans while reducing the ability of Americans to learn 

what their Government is doing. 

397

The Congress provided these sunsets in order to allow this body 

to give a fresh look at the contentious portions thereof so that adequate fixes can be made. My hypothetical is a possibility. It is a 

possibility. False statements can be made about patients. FBI can 

seize patient records and broadly seize all of a doctor’s records, 

every single patient. And it can lead to dead ends and, of course, 

no results. And why not have medical records excluded under this 

particular provision? It does not bar the agent or the investigation 

from securing records. If they prove themselves in an open court 

setting or some other setting, it does not bar them. These are a secret process. It violates the privacy and overtakes, if you will, existing law that has been written to protect the rights of Americans. 

Mr. LUNGREN. Would the gentlelady yield? 

Ms. JACKSON LEE. I would argue that—I don’t have the time to 

yield. I’d ask my colleagues to support this amendment in its narrow, narrow exclusion of medical records and the allowance of 

these records to be excluded, but yet the investigation to go forward. 

Ms. WATERS. Reclaiming my time, and I will yield to the gentleman from California. 

Mr. LUNGREN. I thank the gentlelady for yielding. The 

mischaracterization of my statement I’d like to respond to. I never 

said that the United States Government has never abused its powers. I said with the investigations of this Committee during the 

course of our many hearings, we have yet to find any evidence of 

abuse of the act that is before us that we are acting on right now, 

and that was the point that I solely made. And the gentlelady from 

Texas talked about the generalization, and I would just suggest 

that in our arguments we might bring them a little more focused 

into what we have said and the provisions that are before us. But 

I thank the gentlelady for yielding. 

Ms. JACKSON LEE. May I just have 1 minute, if there is any——

Ms. WATERS. I yield to the gentlelady from Texas. 

Ms. JACKSON LEE. Let me thank the gentleman for clarifying. My 

example was as it was to just generally highlight episodes in our 

Government’s life and that we should try at this time to be able 

to narrow our overreach in the PATRIOT Act. But I will say this 

to you: I’ve heard from many librarians who have indicated their 

intimidation by this process and the overreach of that intimidation. 

So I think that we have to look closely, we have to scrutinize this 

particular legislation, and the Ranking Member made it very clear 

as he started out this morning. We had a bipartisan bill 2 years 

or so ago, but it turned out not to be a bipartisan bill. I hope that 

now that we can do so. I look forward to working with the distinguished gentleman from California, but reaching for medical 

records without narrowing it I think is——

Chairman SENSENBRENNER. The time of the gentlewoman has expired. The question is on the amendment offered by the gentlewoman from Texas, Ms. Jackson Lee. Those in favor will say aye? 

Opposed, no? 

Ms. JACKSON LEE. rollcall. 

Chairman SENSENBRENNER. The noes appear to have it—rollcall 

will be ordered. Those in favor of the Jackson Lee amendment will 

as your names are called answer aye, those opposed no, and the 

clerk will call the roll. 

398

The CLERK. Mr. Hyde? 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. Mr. Smith? 

[No response.] 

The CLERK. Mr. Gallegly? 

[No response.] 

The CLERK. Mr. Goodlatte? 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

[No response.] 

The CLERK. Mr. Bachus? 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

[No response.] 

The CLERK. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

Mr. BERMAN. Pass. 

The CLERK. Mr. Berman, pass. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

399

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. Ms. Waters? 

[No response.] 

The CLERK. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler? 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

Mr. SCHIFF. No. 

The CLERK. Mr. Schiff, no. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Are there further members in the 

chamber who wish to cast or change their vote? The gentleman 

from Florida, Mr. Feeney. 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. 

Chairman SENSENBRENNER. The gentleman from Utah, Mr. Cannon. 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Gallegly. 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote? If not, the clerk will report. 

The gentlewoman from California, Ms. Waters. 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. 

Chairman SENSENBRENNER. The clerk will report. 

The CLERK. Mr. Chairman, there are 12 ayes and 24 noes. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. 

Are there further amendments? The gentleman from Maryland, 

Mr. Van Hollen. 

Mr. VAN HOLLEN. Thank you, Mr. Chairman. I know the hour is 

later, and I’ll try and be brief. 

Chairman SENSENBRENNER. Does the gentleman have an amendment at the desk? 

Mr. VAN HOLLEN. I do, Mr. Chairman. 

400

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Van Hollen 

of Maryland. Add at the end of the following: Sec. lll. Terrorist 

Lists. Section 1001 of the US PATRIOT Act, P.L. 107-56, is amended——

Mr. VAN HOLLEN. Mr. Chairman, I ask unanimous consent that 

further reading of the amendment be dispensed with. 

Mr. GALLEGLY. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from California. 

Mr. GALLEGLY. Raise a point of order. 

Chairman SENSENBRENNER. The gentleman reserves a point of 

order. Subject to the reservation, the further reading of the amendment is dispensed with and the gentleman from Maryland, Mr. 

Van Hollen, is recognized for 5 minutes. 

[The amendment of Mr. Van Hollen follows:]

401


3199NN.eps
402

Chairman SENSENBRENNER. Mr. Van Hollen. 

Mr. VAN HOLLEN. Thank you, Mr. Chairman. This is an amendment to the existing statute, PATRIOT Act statute, Section 1001, 

regarding certain requirements placed on the Inspector General of 

the Department of Justice. And what this does simply is deal with 

the terrorist watchlist. 

Earlier I offered an amendment that would impose responsibilities on those individuals who knowingly sold firearms to individuals on the watchlist, and Mr. Lungren and others raised the issue 

about the reliability of those watchlists and whether or not everyone who was listed on those lists was properly there. And when we 

had the Attorney General testifying on this bill before this Committee, I asked him about what mechanism was in place for a citizen who had been mistakenly placed on the watchlist to get him 

or herself off that watchlist, and the Attorney General said he’s 

like to work with us to make sure we did that. 

Well, they’ve been working on that, but the work has been going 

rather slowly. Just last month, the Inspector General at the Department of Justice issued a report regarding the Terrorist Screening Center. It’s a report entitled ‘‘Review of the Terrorist Screening 

Center.’’ One of the recommendations they make in that report is 

to strengthen the procedures for handling misidentifications and 

articulate in a formal written document the protocol supporting 

such procedures. And they make other recommendations. 

What this amendment does very simply is say within 90 days of 

the enactment of this act, let’s ask the Inspector General to report 

to this Committee on what progress has been made by the Department in implementing the recommendations by the Inspector General with respect to having a protocol and having some set procedure for people who are misplaced, whose names should not be 

placed on that list, how they get off the list. I think we’ve all heard 

stories about people who find themselves on the list, and there’s no 

clear mechanism for how they get off. And this simply asks for a 

report on what follow-through has been made on recommendations 

by the Inspector General at the Justice Department. 

I would urge members on both sides of the aisle to adopt the 

amendment. 

Chairman SENSENBRENNER. Does the gentleman from California 

insist upon his point of order? 

Mr. GALLEGLY. Yes. 

Chairman SENSENBRENNER. The gentleman will state his point of 

order. 

Mr. GALLEGLY. Mr. Chairman, I make a point of order that the 

amendment is not germane under House Rules. H.R. 3199 reauthorizes certain provisions of the PATRIOT Act and the Intelligence Reform and Terrorism Prevention Act. House Rule XVI-7 

precludes amendments on a subject different from that under consideration. This amendment is outside the subject matter of the 

legislation we’re considering at today’s markup. 

In addition, the fundamental purpose of this amendment is inconsistent with the primary purpose of the bill under consideration 

and, thus, non-germane under rule—House Rule XVI-7. 

Chairman SENSENBRENNER. Does the gentleman from Maryland 

wish to speak on the point of order? 

Mr. VAN HOLLEN. Yes, Mr. Chairman, I do. 

403

Chairman SENSENBRENNER. The gentleman from Maryland. 

Mr. VAN HOLLEN. I would just remind my colleague that earlier 

today there was an amendment offered by Ms. Lofgren of California to exactly this same section, which was adopted, I believe 

unanimously, on a recorded vote by this Committee. And my understanding is—and I would press this issue, which is that the 

Committee having taken that action with respect to amending this 

section in the regard that we did, and I think you’ll find it was on 

an issue of similar nature, not the exact same point, that that issue 

has already been addressed by this Committee. 

So I would ask that we consider this amendment, having, you 

know, looked at what the Committee already done—did today and 

address it on its merits and make a decision. 

Chairman SENSENBRENNER. The Chair is prepared to rule. Because this is an amendment to the material witness part of the PATRIOT Act, the Chair feels that it is germane and overrules the 

point of order, and the question is on adoption of the Van Hollen 

amendment. 

Mr. KING. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Iowa, Mr. King. 

Mr. KING. I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. KING. Thank you, Mr. Chairman. The Van Hollen amendment is brought before us, and we need to recognize that we have 

procedures now for removal of the names from the list. And we 

could name some of the fairly high-profile people who have been in 

the news here recently who have had their name removed from the 

list. But if we go forward with this amendment, then we’ll end up 

with a public report, and the public report will be a scorecard to 

the world as to how we’re doing with this particular list, and it 

might very well add to a lot of speculation and cause us greater 

problems than any of us on either side of the aisle would like to 

see on this issue. 

So I would point out to the gentleman from Maryland that there 

is a GAO study. It’s ongoing now, and it was requested approximately last March. It should be concluded sometime in November 

or December, at which time it would come back to us, classified. 

We’d have access to that report to review it in a classified setting. 

I’d be happy to go and review that—in fact, I think it would be an 

obligation on my part—and invite the gentleman from Maryland to 

do so. If you’d like another kind of a report to come, a member letter could be submitted to Justice, and one could achieve this information without being so public with it. 

So that would be the list of my objections to this amendment, 

and I’d urge a no vote and yield back the balance of my time. 

Chairman SENSENBRENNER. The question is on the Van Hollen 

amendment. Those in favor will say aye? Opposed, no? 

The noes appear to have it. The noes have it. The amendment 

is not agreed to. 

Are there further——

Mr. VAN HOLLEN. Mr. Chairman, I would ask for a rollcall on 

that. 

404

Chairman SENSENBRENNER. A rollcall will be ordered. Those in 

favor of the Van Hollen amendment will as your names are called 

answer aye, those opposed no, and the clerk will call the roll. 

The CLERK. Mr. Hyde? 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. Mr. Coble? 

[No response.] 

The CLERK. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. Mr. Goodlatte? 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. Mr. Chabot? 

[No response.] 

The CLERK. Mr. Lungren? 

[No response.] 

The CLERK. Mr. Jenkins? 

[No response.] 

The CLERK. Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

405

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. Ms. Waters? 

[No response.] 

The CLERK. Mr. Meehan? 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. Mr. Delahunt? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler? 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, no. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote? The gentleman from Tennessee, Mr. Jenkins. 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Lungren. 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. 

Chairman SENSENBRENNER. The gentleman from Ohio, Mr. 

Chabot. 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. 

Chairman SENSENBRENNER. The gentleman from North Carolina, 

Mr. Coble. 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Chairman SENSENBRENNER. Further members who wish to cash 

or change their votes? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 15 ayes and 23 noes. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. Are there further amendments? The gentleman from New York, 

Mr. Nadler. 

Mr. NADLER. Thank you, Mr. Chairman. This is my next to last 

amendment that’s designated A at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

406

The CLERK. Amendment to H.r. 3199 offered by Mr. Nadler of 

New York. 

Insert in the appropriate place in the bill the following: 

Section lll. Right to Counsel 

(1) In General—Section 2709 of Title 18, United States Code, is 

amended by inserting——

(a) Authority to Disclose to Qualified Persons 

(1) Any person to whom an order is directed——

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read and the gentleman from New York is recognized 

for 5 minutes. 

[The amendment of Mr. Nadler follows:]

407


3199OO1.eps
408


3199OO2.eps
409

Mr. NADLER. Thank you. Mr. Chairman, I’ll be very brief. This 

amendment amends Section 505 dealing with national security letters, and essentially puts into that section the same language the 

Chairman put into the Section 215 in the main bill. 

It does two things. It says that when you have Section 505, a national security letter with respect to the non-disclosure of the gag 

order, you can disclose it to your attorney and you can disclose it 

to someone else in your company to whom disclosure is necessary 

in order to comply with the order. 

The language is essentially taken from the language that is in 

the bill in Section 215, and the thought is the same reason the bill 

puts this into Section 215, it ought to put it into Section 505. You 

should be able to disclose the contents of the national security letter to whoever it’s necessary to disclose it to in order to get the letter complied with if it’s someone else in your company; and two, 

to your attorney so that they can give you legal advice. And anyone 

you disclose it to is bound by the same gag order. 

So it’s the same reasoning and the same language as in Section 

215, the same purpose, and I would hope it would be accepted, and 

I yield back. 

Mr. FLAKE. Would the gentleman yield? 

Mr. NADLER. Yes, I will. 

Chairman SENSENBRENNER. The gentleman from Arizona, Mr. 

Flake. 

Mr. NADLER. Did you want me to yield before I yield back? 

Mr. FLAKE. Yes. 

Mr. NADLER. I’ll yield to the gentleman. 

Mr. FLAKE. This won’t take long. I don’t have the language drafted. We have some of the same concerns. We worked on some of the 

same concerns, so it’s not surprising. But I am working on a floor 

amendment that would address the same concerns that you’re looking at here. I can’t give you specific on it. I won’t offer it here, but 

I’d be glad to work with you on one for the floor. 

Mr. NADLER. Reclaiming my time, assuming this amendment—

well, whether or not this amendment doesn’t pass, I’ll be happy to 

work with you as we go to the floor. 

But I would hope this amendment would be accepted. The language is taken verbatim, just about verbatim from Section 215 in 

the bill. And obviously, it is necessary, and 215 is necessary here. 

Mr. FLAKE. If the gentleman will yield, I’m still working on language. I’m not prepared to support this, but I would be glad to 

work with the gentleman on the amendment I’m working on for the 

floor. 

Chairman SENSENBRENNER. Gentleman yield back? 

Mr. NADLER. I yield back. 

Chairman SENSENBRENNER. Question is on the Nadler amendment. Those in favor will say aye. 

Opposed no. 

The noes appear to have it. 

Mr. NADLER. I ask for the yeas and nays. 

Chairman SENSENBRENNER. rollcall will be ordered. Those in 

favor of the Nadler amendment will, as your names are called, answer aye; those opposed, no; and the clerk will call the roll. 

The CLERK. Mr. Hyde? 

Mr. HYDE. No. 

410

The CLERK. Mr. Hyde, no. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. Mr. Smith? 

[No response.] 

The CLERK. Mr. Gallegly? 

[No response.] 

The CLERK. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

[No response.] 

The CLERK. Mr. Lungren? 

[No response.] 

The CLERK. Mr. Jenkins? 

[No response.] 

The CLERK. Mr. Cannon? 

[No response.] 

The CLERK. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

[No response.] 

The CLERK. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

[No response.] 

The CLERK. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

411

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. Ms. Waters? 

[No response.] 

The CLERK. Mr. Meehan? 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. Mr. Delahunt? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler? 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their votes? Gentleman from California, Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. 

Chairman SENSENBRENNER. Gentleman from California, Mr. 

Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. 

Chairman SENSENBRENNER. Gentleman from Virginia, Mr. Goodlatte? 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. 

Chairman SENSENBRENNER. Gentleman from Texas, Mr. Smith? 

Mr. SMITH. Mr. Chairman, I vote no. 

The CLERK. Mr. Smith, no. 

Chairman SENSENBRENNER. The gentleman from Tennessee, Mr. 

Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. 

Chairman SENSENBRENNER. Gentleman from Wisconsin, mr. 

Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. 

Chairman SENSENBRENNER. Gentlewoman from California, Ms. 

Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. 

Chairman SENSENBRENNER. Gentleman from California, Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. 

412

Chairman SENSENBRENNER. Further members who wish—gentleman from Utah, Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. 

Chairman SENSENBRENNER. Gentleman from Alabama, Mr. 

Bachus? 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their votes? 

Ms. JACKSON LEE. Mr. Chairman, how am I recorded? 

Chairman SENSENBRENNER. How is the gentlewoman from Texas 

recorded? 

The CLERK. Mr. Chairman, Ms. Jackson Lee is recorded as an 

aye. 

Ms. JACKSON LEE. Thank you. 

Chairman SENSENBRENNER. The clerk will report. 

Gentleman from Ohio, Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. 

Chairman SENSENBRENNER. The clerk will report. 

The CLERK. Mr. Chairman, there are 16 ayes and 23 noes. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. Are there further amendments? The gentleman from Virginia, 

Mr. Scott. 

Mr. SCOTT. Mr. Chairman, I have an amendment at the desk, 

Humanitarian Assistance. 

The CLERK. Amendment to H.R. 3199 offered by Mr. Scott of Virginia. 

Add at the end the following: 

Section lll. Humanitarian assistance under the material support statute. 

Section 18 USC Subsection 2339A is amended by striking ‘‘or religious materials’’ in section (b) and inserting——

Chairman SENSENBRENNER. By unanimous consent, the amendment will be considered as read, and the gentleman from Virginia 

will be recognized for 5 minutes. 

[The amendment of Mr. Scott follows:]

413

Mr. SCOTT. Thank you, Mr. Chairman. Mr. Chairman, this is 

under the material support prohibition, that you can’t give material 

support to terrorist organizations. This would allow normal humanitarian assistance during times of a natural disaster or other humanitarian situations to people in countries or territories that may 

be controlled by individuals or groups on watch lists or other designations which would constitute or at least raise the possibility of 

a violation of material support prohibition. 

There’s no logical reason that you could provide medicines but 

not medical services or drinking water or food to people when those 

services or materials could not be diverted to military ends. 

I would hope it would be the pleasure of the Committee to adopt 

the amendment. 

Mr. KING. Mr. Chairman? 

Chairman SENSENBRENNER. Gentleman from Iowa, Mr. King. 

Mr. KING. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. KING. I thank the Chairman. 

The gentleman from Virginia’s amendment goes—does a number 

of things here that I don’t know that this Committee can support, 

and one of them is it simply gives legitimacy to the terrorist organizations, and by opening up the door to send more money and 

more relief and funnel it through the terrorist organizations—and 

we’re talking about terrorist organizations like Abu Nidal, Ansar 

al-Islam, Al-Aqsa Martyrs Brigade, the Armed Islamic Group, 

the—it gets worse—Hamas, Hezbollah, Islamic Jihad, al-Jihad, al 

Qaeda, and the al Qaeda organization in Iraq, all part of the 41 

terrorist organizations. And to give them this form of legitimacy 

and open this door up, where it’s fairly closed right now, I mean 

to add to this, to add to the religious materials and medical supplies, services, drinking water, food, children’s clothing. 

But the problem with this is the catch-all, the services and other 

humanitarian materials and services that could not be diverted to 


3199PP.eps
414

military ends. That’s everything but guns and bullets by that definition. 

And if you recall, our President, shortly after September 11th, 

made the statement that if you harbor terrorists you are a terrorist, if you fund terrorists you are a terrorist. And these are terrorist organizations. This is funding that goes to terrorist organizations. We would be funding terrorist organizations with this 

amendment. It’s not just the Republican side of the aisle that 

makes those kind of statements, but the President’s is—I would 

just simply quote. ‘‘International terrorist networks make frequent 

use of charitable or humanitarian organizations to obtain clandestine financial and other support for their activities.’’ This could be 

a loophole through which support could be provided to individuals 

or groups involved with terrorism. 

Concurring with the President’s view would be Senator Dianne 

Feinstein, who said, in part, ‘‘I simply do not accept that so-called 

humanitarian works by terrorist groups can be kept separate from 

their other operations. I think the money will ultimately go to 

bombs and bullets, rather than babies, or because money is fungible, it will free up other funds to be used on terrorist activities.’’

For that reason and many others, I urge the defeat of this 

amendment, and I would yield back the balance of my time. 

Chairman SENSENBRENNER. The question is on the amendment——

Mr. NADLER. Mr. Chairman? 

Chairman SENSENBRENNER. Gentleman from New York. 

Mr. NADLER. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman’s recognized for 5 

minutes. 

Mr. NADLER. Mr. Chairman, I believe this is a very interesting 

amendment, and I yield to the gentleman from Virginia. 

Mr. SCOTT. Thank you, Mr. Chairman. I would say that what 

we’re doing is amending an existing statute which allows religious 

materials and medicines to be given to all of those groups that 

have been indicated. That’s present law. What we’re doing is just 

extending what you can give in disaster situations or otherwise, 

medical services, drinking water, children’s clothing and other humanitarian services. 

I mean if you can give religious materials and medicines, you 

ought to be able to give water to the same groups that you’ve listed. That’s the present law. And in a disaster, you know, some people may not want to give water or other humanitarian assistance 

because they may be committing a crime, and I can’t believe that 

that’s our intent. I’d hope we’d adopt the amendment so we can 

provide some humanitarian aid in disasters to people in need. 

Mr. LUNGREN. Will the gentleman yield? 

Mr. NADLER. Reclaiming my time, I’ll yield to the gentleman 

from California. 

Mr. LUNGREN. I would just ask the gentleman from Virginia 

whether or not he accepts the argument of fungibility of funds? 

That is, being able to use——

Mr. NADLER. I yield to the gentleman from Virginia. 

Mr. SCOTT. If the gentleman would yield, I would say that you’ve 

got medicines, religious materials and other things already under 

the law. And yeah, I guess, instead of—if people are dying of thirst 

415

and you provided some water, maybe that would be fungible, but 

I think under the circumstances, just humanitarian circumstances, 

you ought to be able to provide humanitarian aid without being 

charged with a crime. 

Mr. NADLER. Reclaiming my time, I’d like to ask the gentleman, 

to whom are you supplying this under this amendment? I’ll yield. 

Mr. SCOTT. I’d say to the gentleman, the same people you are 

under Section 18 USC 2339A, whoever you’re—with the exceptions 

there of religious materials, medicines and things like that. We’re 

just adding to the things that you can give under that same section. We’re just having a few more exceptions like water and children’s clothing and humanitarian aid. 

Mr. NADLER. I thank the gentleman. I yield back. 

Chairman SENSENBRENNER. Gentleman from Wisconsin. 

Mr. GREEN. Move to strike the last word. 

Chairman SENSENBRENNER. Gentleman’s recognized for 5 minutes. 

Mr. GREEN. Thank you, Mr. Chairman. I rise in opposition to 

this amendment as well, and for many of the same reasons that my 

friend and colleague from Iowa has laid out. 

First off, it’s far too broadly drafted. It is a catch-all. For example, the use of educational supplies, well, we were particularly trying to get at with the material support statutes the provision of intellectual support and educational material that could in fact be of 

assistance to terrorists. Also, when you make reference to other humanitarian materials and services, that is a large catch-all. All of 

these materials are fungible. But there’s another important point 

here. We don’t want to add legitimacy or credibility to these organizations, and I think we do that if we start broadening what it is 

that can be supplied to them under the statute. 

I think it’s a tremendous mistake. I think we should keep it narrow as it is. I’m not aware of there being any problems have been 

identified. If the gentleman can name circumstances where these 

organizations or individuals were in need and we were not able to 

help them under the previous statute, I’d certainly be willing to listen. Beyond that, I just think this amendment is opening up a dangerous door. It’s far too broad, and I think it would be a step in 

the wrong direction. 

With that I yield back. 

Chairman SENSENBRENNER. The question is on the Scott amendment. Those in favor will say aye. Opposed no. 

The noes appear to have it. The noes——

Mr. SCOTT. Recorded vote, please? 

Chairman SENSENBRENNER. Recorded vote will be ordered. All 

those in favor of the Scott amendment will, as your names are 

called, answer aye, those opposed no, and the clerk will call the 

roll. 

The CLERK. Mr. Hyde? 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

Mr. GALLEGLY. No. 

416

The CLERK. Mr. Gallegly, no. Mr. Goodlatte? 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

[No response.] 

The CLERK. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. No. 

The CLERK. Mr. Nadler, no. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

[No response.] 

The CLERK. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. Mr. Meehan? 

417

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. Mr. Delahunt? 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. Mr. Wexler? 

Mr. WEXLER. No. 

The CLERK. Mr. Wexler, no. Mr. Weiner? 

Mr. WEINER. No. 

The CLERK. Mr. Weiner, no. Mr. Schiff? 

[No response.] 

Ms. JACKSON LEE. How am I recorded? Are they in the middle 

of the vote? 

The CLERK. Mr. Chairman, Ms. Jackson Lee is not recorded. 

Ms. JACKSON LEE. Aye, please. 

The CLERK. Ms. Jackson Lee, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. No. 

The CLERK. Mr. Van Hollen, no. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. No. 

The CLERK. Ms. Wasserman Schultz, no. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members in the chamber who wish 

to cast or change their vote? Gentleman from Arizona, Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. 

Chairman SENSENBRENNER. Gentleman from California, Mr. Berman? 

Mr. BERMAN. No. 

The CLERK. Mr. Berman, no. 

Chairman SENSENBRENNER. Gentleman from California, Mr. 

Schiff? 

Mr. SCHIFF. No. 

The CLERK. Mr. Schiff, no. 

Chairman SENSENBRENNER. Gentlewoman from California, Ms. 

Sa ́nchez? 

Ms. SA ́ NCHEZ. No. 

The CLERK. Ms. Sa ́nchez, no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote? 

[No response.] 

Chairman SENSENBRENNER. If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 7 ayes and 31 noes. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. Are there further amendments? The gentlewoman from Texas, 

Ms. Jackson Lee. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. 

Let me say that I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Mr. Chairman, I have two amendments from Ms. 

Jackson Lee. 

Ms. JACKSON LEE. Enhanced review. 

The CLERK. Amendment to H.R. 3199 offered by Ms. Jackson 

Lee. 

418

At the end of the bill, add the following section: 

Section lll. Enhanced Review of Profiling and Data Collection. 

Section 1001 of the USA PATRIOT Act is amended by: 

(1) adding after ‘‘(1)’’ the following: ‘‘(a)’’; and 

(2) adding after ‘‘Department of Justice’’ the following: 

Ms. JACKSON LEE. I ask the amendment to be considered as read. 

Chairman SENSENBRENNER. Without objection, so ordered. 

[The amendment of Ms. Jackson Lee follows:]

419


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Ms. JACKSON LEE. Colleagues, I’ll be very brief. I just want——

Chairman SENSENBRENNER. The gentlewoman’s recognized for 5 

minutes. 

Ms. JACKSON LEE. —refer you to an informational piece that this 

amendment would allow us to operate under the guidelines, under 

the Attorney General’s guidelines on general crimes, racketeering 

enterprise and domestic security terrorism, dated March 21, 1989. 

I would think under the 9/11 Commission Report, one of the 

things that it included in its report was to sensitize Americans and 

sensitize our need to understand diverse cultures. We cannot understand diverse cultures as they believe that our attempt to be secure racially profiles their communities. 

In 1989 Attorney General Dick Thornburgh approved new guidelines for how the FBI would pursue domestic security and terrorism. Those guidelines recognized investigations into domestic activities as something necessary——

Chairman SENSENBRENNER. The gentlewoman will suspend. The 

Committee is not in order. If we can quiet things down and listen 

to the eloquence of the gentlewoman from Texas, maybe we can get 

done quicker. 

The gentlewoman will proceed. 

Ms. JACKSON LEE. I thank the Chairman. 

But it said that limits—but that limits and protections were 

needed to ensure the constitutional rights of average Americans. 

However, in 2002, Attorney General Ashcroft extended these guidelines in a way that clearly intruded on Americans’ First Amendment Right to speak and peacefully assemble and other constitutional protections. 

Most importantly, the 2002 guidelines now allow the FBI to monitor even peaceful rallies, protests and meetings of religious, political and social without any suspicion of wrongdoing. 

My amendment is simple. It would like to ensure that we follow 

the guidelines, that even as we seek to provide homeland security 

or security and intelligence by securing information, that we not 

recklessly invade the concept, or overlook the concept of racial 

profiling. It asks for a review of the use of any investigative authority on the Attorney General’s guidelines, and in so doing, it 

helps us to protect innocent individuals who happen to be of a particular faith or racial background. 

Since 2002 these new powers have been used by the FBI to spy 

on mosques, and to try to infiltrate Muslim and Arab groups in 

ways that clearly implicate the First Amendment. 

I believe that as 9/11 Commission Report indicated, we can be 

safe but also protect civil liberties. 

Mr. Chairman, I was also going to offer an amendment that 

would investigate the results of FISA authorizations as to the number of convictions or deportations that occurred. I will not offer that 

amendment. I will hope to work with Committee staff to try and 

refine that. It’s an investigatory tool that classified information can 

come back to the Congress to see how effective FISA has been in 

terms of criminal proceedings or removal proceedings. But I go 

back to this amendment, and simply ask my colleagues to support 

it. 

And I commend to them an article in the Washington Times, 

knowing that our British friends have gone through a very serious 

421

tragedy over the last couple of days, but out of that tragedy the article says, Britons favor tracking Muslim activities. We know that 

danger and terrorist activities generate a focus on particular religious groups and particular ethnic groups. This amendment gives 

us the investigatory tool to ensure that if there is racial profiling, 

we are finding a way to thwart it. And so I hope my colleagues 

would support this amendment. 

Mr. KING. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Iowa, Mr. King. 

Mr. KING. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. KING. Thank you, Mr. Chairman. Consistent with the sentiment of the gentlelady from Texas’s amendment, and also consistent with the due diligence oversight that’s being led by this 

Committee, by the Chairman and the Ranking Member, the Inspector General is doing a larger investigation which includes this 

amendment. It’s a larger investigation, but inclusive of the 

gentlelady from Texas’s amendment, which is before us. 

They’ve testified here in this Committee, and that report is due 

here in about a month. So it would be my opinion that we’re better 

off to wait a month and get the report that’s on the way, than pass 

an amendment that would simply confuse the issue, and so I’d urge 

a no vote on the gentlelady’s amendment——

Ms. JACKSON LEE. Will the gentleman yield? 

Mr. KING. I would yield. I would yield. 

Ms. JACKSON LEE. I thank the distinguished gentleman. 

Chairman, the room is not in order. 

Chairman SENSENBRENNER. The Committee will be in order. The 

gentlewoman is recognized. 

Ms. JACKSON LEE. I thank the tone of the distinguished gentleman’s remarks, and I was made aware that there was a Inspector 

General’s Report on its way to Congress. My interest is that by including it in this legislation, this language, it allows us to have a 

continuing report and a continuing monitoring in a classified manner. 

Respect the gentleman’s acknowledgement that a report may be 

forthcoming, but I would suggest to him that as we pass the PATRIOT Act, it is going to be part of the fabric of our society. There 

will be ongoing opportunities for individuals to be targeted, and/or 

for racial profiling or religious profiling to go on. 

We can be secure without such profiling. I think it’s appropriate 

to remind the Attorney General and others engaged in this process 

to follow those guidelines ongoing. So I’d ask my colleagues——

Mr. KING. Reclaiming my time. 

Ms. JACKSON LEE. I yield back. 

Mr. KING. I thank the gentlelady from Texas. 

You know, we have a report that’s coming before us that we have 

without the requirement of legislation to get that report, and I suggest we receive the report in about a month, review the report, 

make a decision at that time as to whether we need some permanent fixture in statute, and I’d urge a no vote on the amendment. 

Yield back the balance of my time. 

422

Chairman SENSENBRENNER. The question is on the amendment 

offered by the gentlewomen from Texas, Ms. Jackson Lee. Those in 

favor will say aye. Opposed, no. 

Noes appear to have it. 

Ms. JACKSON LEE. rollcall. 

Chairman SENSENBRENNER. rollcall will be ordered. Those in 

favor of the Jackson Lee amendment will, as your names are 

called, answer aye; those opposed no; and the clerk will call the 

roll. 

The CLERK. Mr. Hyde? 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. Mr. Goodlatte? 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

423

The CLERK. Mr. Conyers, aye. Mr. Berman? 

Mr. BERMAN. No. 

The CLERK. Mr. Berman, no. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. Ms. Waters? 

[No response.] 

The CLERK. Mr. Meehan? 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. Mr. Delahunt? 

Mr. DELAHUNT. No. 

The CLERK. Mr. Delahunt, no. Mr. Wexler? 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. Mr. Weiner? 

Mr. WEINER. Pass. 

The CLERK. Mr. Weiner, pass. Mr. Schiff? 

[No response.] 

The CLERK. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Pass. 

The CLERK. Ms. Sa ́nchez, pass. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

[No response.] 

The CLERK. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their votes? Gentlewoman from California, Mrs. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. 

Chairman SENSENBRENNER. Gentleman from New York, Mr. 

Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. 

Chairman SENSENBRENNER. Gentlewoman from California, Ms. 

Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their votes? 

[No response.] 

Chairman SENSENBRENNER. If not, the clerk will report. 

Gentlewoman from Florida, Ms. Wasserman Schultz? 

The CLERK. Mr. Chairman, I don’t have Ms. Wasserman Schultz. 

Ms. WASSERMAN SCHULTZ. If I could be recorded as aye, please. 

The CLERK. Ms. Wasserman Schultz, aye. 

424

Chairman SENSENBRENNER. Clerk will report. 

The CLERK. Mr. Chairman, there are 13 ayes and 25 noes. 

Chairman SENSENBRENNER. The amendment is not agreed to. 

Are there further amendments? 

Mr. CONYERS. Mr. Chairman, I ask unanimous consent to speak 

out of order? 

Chairman SENSENBRENNER. The gentleman strikes the last word, 

is recognized for 5 minutes. 

Mr. CONYERS. Mr. Chairman, we’ve been here nearly 12 hours. 

I am going to announce my intention after the next amendment to 

call for the previous question, because most of the members here 

who have additional amendments have agreed to hold them in 

abeyance so that we can move on tomorrow, having disposed of this 

measure. And I propose further that all of us who do have amendments, including myself, will be able to put them in the record collectively, indicating how—why they’re important and how we would 

have voted on them. And I ask that cooperation of my colleagues, 

so that we may complete another very full round of hearings in the 

morning. 

Thank you. 

Chairman SENSENBRENNER. Are there further amendments? 

Mr. NADLER. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Nadler? 

Mr. NADLER. Mr. Chairman, I have an amendment at the desk. 

Mr. Scott has an amendment at the desk. I ask unanimous consent 

they be considered together. 

Chairman SENSENBRENNER. The clerk will report the amendments first. 

The CLERK. Mr. Chairman, I have two Nadler amendments, 

and——

Mr. NADLER. The one he’s going to hand you. 

The CLERK. Amendment to H.R. 3199——

Mr. NADLER. 19—99, I’m sorry. You’re right. You’re right. 

The CLERK. Offered by Mr. Nadler of New York. Insert at the appropriate place in the bill the following: Section lll. Judicial Review. (a) In general. Section 2709 of title 18, United States Code, 

is amended by—(1) redesignating subsection (e) as subsection (g); 

and (2) inserting after subsection (d) the following: (e) Judicial Review. (1) Request. Not later than 20 days after any person receives 

a request pursuant to subsection (b), or at any time before the return date specified in the request, whichever period is shorter, such 

person may file, in the district court of the United States——

Mr. NADLER. Mr. Chairman, I ask unanimous consent to waive 

the reading of this amendment. 

Chairman SENSENBRENNER. The gentleman from North Carolina 

reserves a point of order. Without objection, the amendment is considered as read. 

[The amendment of Mr. Nadler follows:]

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Chairman SENSENBRENNER. Is there a second amendment that 

the gentleman wishes to consider en bloc? 

Mr. NADLER. The second amendment is by Mr. Scott. 

Chairman SENSENBRENNER. The clerk will report the second 

amendment. Without objection—well, the clerk will report the second amendment. 

The CLERK. Amendment to H.R. 3199, offered by Mr. Scott of 

Virginia. Add at the end the following: Section 9. Factual basis for 

pen register and trap and trade authority under Section 214 of the 

USA PATRIOT Act. (a) Application. Subsection——

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. 

[The amendment of Mr. Scott follows:] 

433

1

H.L.C.

AMENDMENT TO H.R. 3199

OFFERED BY MR. SCOTT OF VIRGINIA

Add at the end the following:

1 SEC. 9. FACTUAL BASIS FOR PEN REGISTER AND TRAP AND

2 TRACE AUTHORITY UNDER SECTION 214 OF

3 THE USA PATRIOT ACT.

4 (a) APPLICATION.—Subsection (c)(2) of section 402

5 of the Foreign Intelligence Surveillance Act of 1978 (50

6 U.S.C. 1842) is amended by striking ‘‘a certification by

7 the applicant that’’ and inserting ‘‘a statement of the facts

8 relied upon by the applicant to justify his belief that’’.

9 (b) ORDER.—Subsection (d)(1) of such section is

10 amended by striking ‘‘if the judge finds that’’ and all that

11 follows and inserting ‘‘if the judge finds that the applica12 tion includes sufficient facts to justify the belief that the

13 information likely to be obtained is foreign intelligence in14 formation not concerning a United States person or is rel15 evant to an ongoing investigation of international ter16 rorism or clandestine intelligence activities and otherwise

17 satisfies the requirements of this section.’’.


3199SS.AAB
434

Chairman SENSENBRENNER. Without objection, the amendments 

are considered en bloc. The gentleman from New York is recognized 

for 5 minutes. 

Mr. NADLER. Thank you, Mr. Chairman. I won’t take 5 minutes. 

I will talk about the first amendment. 

Mr. Chairman, I mentioned on an earlier amendment that under 

a Federal court decision under applicable Federal case law, Section 

505 of the PATRIOT Act is unconstitutional on two grounds: one, 

which the earlier amendment attempted to deal with, was that the 

gag order had to be approved by a judge; otherwise, it was a violation of the First Amendment; second of all, that an order for a national security letter has to be subject to judicial review, or else it 

would be unconstitutional under the Fourth Amendment search 

and seizure provision. 

What this amendment does is say that the recipient of a national 

security letter from the FBI can go to Federal district court and 

move to quash it and the court has to rule on that. In other words, 

it provides for judicial—for the possibility of judicial review of a national security letter. That’s all it does, and without this amendment, frankly, I think the courts will, in fact, hold this half of Section 505 unconstitutional. So I urge the adoption of this amendment. 

I yield back. 

Chairman SENSENBRENNER. The gentleman from Arizona, Mr.—

does the gentleman from North Carolina insist on his point of 

order. 

Mr. COBLE. I’ll withdraw my point of order, Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from Arizona, Mr. 

Flake. 

Mr. FLAKE. Mr. Chairman, I have the same issue that I had with 

the last amendment. I’m working on a more comprehensive amendment here on the national security letter, and I share the gentleman’s concerns, but I object for the same reasons. I’m working on 

something more comprehensive. 

I yield back. 

Mr. NADLER. The question is on the amendment——

Mr. SCOTT. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Scott. 

Mr. SCOTT. Mr. Chairman, on the second half of this en bloc 

amendment, I’d like to make a comment. Move to strike the last 

word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCOTT. Mr. Chairman, in fact, this section deals with pen 

register and trap and trace authority. The present law requires a 

judge to issue the order upon the certification of the applicant that 

the information is relevant to an investigation. This would require 

the applicant to make a statement of facts relied upon by the applicant to justify his belief that it’s relevant and requires the judge 

to find sufficient facts to justify that belief that information likely 

to be obtained as foreign intelligence information not concerning a 

United States person and is relevant to the ongoing investigation 

of international terrorism or clandestine intelligence activities. 

435

Mr. Chairman, when you talk about trap and trace authority and 

pen register authority, you’re talking about a situation without 

probable cause, but you do require articulable suspicion. In 2000, 

this Committee voted overwhelmingly to raise the standard for pen 

register and trap and trace devices from a mere claim of relevance 

to a showing of specific and articulable facts. This amendment does 

that. And when we’re talking about the information you get with 

the traditional pen registers, you get just phone numbers. When 

you expand this to electronic and e-mail type situations, you get a 

lot more information. 

For example, if you get the header from an e-mail, you can get 

an entire organization’s electronic mailing list. You can get the 

Web page that someone reads. You can find out what they searched 

for. You can find out what pages they read or what information 

was on that Web page. All of that without probable cause of a 

crime being committed. 

I would hope, Mr. Chairman, that we would require at least the 

articulable facts on which you are relying so that this information, 

which could be information of an innocent party relevant to somebody else’s investigation, your personal information is being discovered, I would hope you’d do that at least on some articulable facts, 

not just on a representation. And so, Mr. Chairman, I would hope 

we’d adopt the amendment and do what we did in 2000 to require 

those articulable facts to be articulated. 

I yield back. 

Chairman SENSENBRENNER. The gentleman from Texas, Mr. 

Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

In response, I do rise in opposition to this amendment. First of 

all, the judge always has discretion when it comes to credibility of 

the witness before him, so the certification in this situation should 

be adequate, especially since we’re talking about a pen register and 

trap and trace, and as the fine gentleman pointed out, we’re talking about phone numbers, numbers that have emanated—calls that 

have emanated from those numbers and are going to those numbers. There’s no conversation involved. The Supreme Court, the 

very Supreme Court that has been able to read in privacy rights 

to the Constitution that I can turn it every which way and have 

trouble finding, nonetheless has found there is no privacy right or 

interest in and to the content of the pen register or the trap and 

trace information. Accordingly, there is a lesser standard there. 

And I appreciate the gentleman’s wishing to insert that the judge 

must find sufficient facts to justify the belief. The rest of the language after that is redundant. But, nonetheless, since there is no 

privacy right and interest in and to that information, we believe 

that it’s adequate. 

What can be done once they find those numbers, if calls are coming to or from known terrorists, then that may give rise to probable 

cause, and then certainly we need probable cause to go forward and 

get warrants and things of that nature. But that is why I would 

urge my colleagues to vote against the amendment? 

Mr. SCOTT. Would the gentleman yield? 

Mr. GOHMERT. I yield back. 

Chairman SENSENBRENNER. The gentleman yields back. The 

question is on—the question is on the amendment——

436

Mr. SCHIFF. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Schiff. 

Mr. SCHIFF. I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCHIFF. I won’t take 5 minutes, Mr. Chairman, and actually 

I know we’re going to call the question, so I want to speak very 

briefly on final passage. We’ve made some very modest changes to 

the bill today. I’d like to see more done. It strikes a stronger balance in both giving law enforcement the capability of investigating 

and prosecuting terrorism, but also provides greater civil liberties 

protections which do not in any way inhibit the Government’s ability to go after terrorists. I’m hoping the bill will be improved on 

the floor and in subsequent legislation. I intend to pass on final 

passage out of the Committee in the hopes that we have additional 

improvements on the floor as this bill moves forward, and I thank 

the——

Mr. BERMAN. Would the gentleman yield? Would the gentleman 

yield? 

Mr. SCHIFF. I’d be happy to yield to my colleague from California. 

Mr. BERMAN. Yeah, I want to—I have very much the same 

thoughts about this as the gentleman from California. Maybe that’s 

why we’re both from California, except there are others who have 

different thoughts. But there are just two—one specific—there are 

a couple of specific things I just wanted to mention for taking the 

same view as Mr. Schiff. One is one part of this bill that makes 

an improvement over existing law is the incorporation of a relevance standard in 215, as well as some of the procedural things, 

although they could be in my view better. 

But I do hope between now and the floor, I believe there is something between the relevance standard and—but far more expansive 

than linking these—the subpoena for business records with just 

specific facts dealing with an agent of a foreign power; that is, 

there are people associated with these agents of a foreign power 

and people we believe—we have reason to believe are agents of a 

foreign power that should be included, but is less broad and all-encompassing than a relevance standard. And I am hoping that between now and the floor there can be effort, a real effort, a bipartisan effort to find an appropriate standard that lets law enforcement do what they need to do in conducting an investigation, gathering the records to prevent and deter terrorist acts, and at the 

same time not allow an open-ended, perhaps relevant but very unrelated to the purposes of a legitimate investigation, sweep-up of 

those records. And I must prefer changing that standard than carving out exemptions for libraries or exemptions for bookstores or exemptions for medical records, which in some cases may have information very directly related to an agent for a foreign power. 

So I’m hoping that between now and the floor there are some 

more things that can be done, as well as tomorrow in the other legislation we’re marking up, and I agree with the gentleman from 

California. 

Ms. LOFGREN. Would the gentleman yield? 

Mr. SCHIFF. I’d be happy to yield. 

437

Ms. LOFGREN. I would just like to encourage the gentleman from 

California, Mr. Berman, in his efforts to change the relevance 

standard. I think it’s extremely important. I’m not, certainly, prepared to support this measure until that is addressed, and hopefully you will succeed in your effort. And if there’s anything I can 

do to assist, I would be happy to do so. 

However, I also believe that there are some carve-outs in addition to the change of the relevance statute that we should look at, 

especially since the—there is a chilling effect on First Amendment 

exercise today, whether or not the—and the Justice Department 

says they have never used it for a library. I have no reason to disbelieve that. But Americans believe that they have, and it chills 

the exercise of First Amendment. And I think that is ample reason 

to pay attention since there is another way to get information. And 

I thank the gentleman for yielding and look forward to working 

with you between now and the floor. 

Mr. SCHIFF. I yield quickly to the gentleman from Virginia. 

Mr. SCOTT. Thank you, Mr. Chairman. Thank you. And I just 

wanted to comment on the gentleman from Texas, who pointed out 

the phone numbers. But this is more than just phone numbers. 

This is e-mail addresses where you can get—if you get the e-mail, 

you can get all the addresses on it. You can really get somebody’s 

entire mailing list. And if you get the Web page somebody’s looking 

at, you can find out what they were searching for, what they read, 

what page they read. I mean, you’re getting some mighty good content when you get the Web page, the total address of the Web page. 

You need more than just a little certification of relevance, and 

it’s not just the terrorist information. Anything relevant to the investigation. That could be some innocent people’s information. You 

ought to need more than just——

Chairman SENSENBRENNER. The time of the gentleman from 

California has expired. 

The question is on agreeing to the amendments en bloc offered 

by the gentleman from New York, Mr. Nadler. Those in favor will 

say aye? Opposed, no? 

The noes appear to have it. The noes have it, and the amendments are not agreed to. 

Are there further amendments? 

[No response.] 

Chairman SENSENBRENNER. If there are no further amendments, 

the question occurs on the motion to report the bill H.R. 3199 favorably as amended. A reporting quorum is present. All in favor 

will say aye? Opposed, no? 

Mr. CONYERS. Mr. Chairman, I request a recorded vote. 

Chairman SENSENBRENNER. The ayes appear to have it. A recorded vote is ordered. Those in favor of the motion to report the 

bill favorably as amended will as your names are called answer 

aye, those opposed no, and the clerk will call the roll. 

The CLERK. Mr. Hyde? 

Mr. HYDE. Aye. 

The CLERK. Mr. Hyde, aye. Mr. Coble? 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble, aye. Mr. Smith? 

[No response.] 

The CLERK. Mr. Gallegly? 

438

Mr. GALLEGLY. Aye. 

The CLERK. Mr. Gallegly, aye. Mr. Goodlatte? 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte, aye. Mr. Chabot? 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, aye. Mr. Lungren? 

Mr. LUNGREN. Aye. 

The CLERK. Mr. Lungren, aye. Mr. Jenkins? 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins, aye. Mr. Cannon? 

Mr. CANNON. Aye. 

The CLERK. Mr. Cannon, aye. Mr. Bachus? 

Mr. BACHUS. Aye. 

The CLERK. Mr. Bachus, aye. Mr. Inglis? 

Mr. INGLIS. Aye. 

The CLERK. Mr. Inglis, aye. Mr. Hostettler? 

Mr. HOSTETTLER. Aye. 

The CLERK. Mr. Hostettler, aye. Mr. Green? 

Mr. GREEN. Aye. 

The CLERK. Mr. Green, aye. Mr. Keller? 

Mr. KELLER. Aye. 

The CLERK. Mr. Keller, aye. Mr. Issa? 

Mr. ISSA. Aye. 

The CLERK. Mr. Issa, aye. Mr. Flake? 

Mr. FLAKE. Aye. 

The CLERK. Mr. Flake, aye. Mr. Pence? 

Mr. PENCE. Aye. 

The CLERK. Mr. Pence, aye. Mr. Forbes? 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes, aye. Mr. King? 

Mr. KING. Aye. 

The CLERK. Mr. King, aye. Mr. Feeney? 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney, aye. Mr. Franks? 

Mr. FRANKS. Aye. 

The CLERK. Mr. Franks, aye. Mr. Gohmert? 

[No response.] 

The CLERK. Mr. Conyers? 

Mr. CONYERS. No. 

The CLERK. Mr. Conyers, no. Mr. Berman? 

Mr. BERMAN. Pass. 

The CLERK. Mr. Berman, pass. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. No. 

The CLERK. Mr. Nadler, no. Mr. Scott? 

Mr. SCOTT. No. 

The CLERK. Mr. Scott, no. Mr. Watt? 

Mr. WATT. No. 

The CLERK. Mr. Watt, no. Ms. Lofgren? 

Ms. LOFGREN. No. 

The CLERK. Ms. Lofgren, no. Ms. Jackson Lee? 

Ms. JACKSON LEE. No. 

The CLERK. Ms. Jackson Lee, no. Ms. Waters? 

Ms. WATERS. No. 

439

The CLERK. Ms. Waters, no. Mr. Meehan? 

Mr. MEEHAN. No. 

The CLERK. Mr. Meehan, no. Mr. Delahunt? 

Mr. DELAHUNT. No. 

The CLERK. Mr. Delahunt, no. Mr. Wexler? 

Mr. WEXLER. No. 

The CLERK. Mr. Wexler, no. Mr. Weiner? 

Mr. WEINER. No. 

The CLERK. Mr. Weiner, no. Mr. Schiff? 

Mr. SCHIFF. Pass. 

The CLERK. Mr. Schiff, pass. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. No. 

The CLERK. Ms. Sa ́nchez, no. Mr. Van Hollen? 

Mr. VAN HOLLEN. No. 

The CLERK. Mr. Van Hollen, no. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. No. 

The CLERK. Ms. Wasserman Schultz, no. Mr. Chairman? 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman, aye. 

Chairman SENSENBRENNER. Are there further members who 

wish to cast or change their vote? The gentleman from Texas, Mr. 

Smith. 

Mr. SMITH. Aye. 

The CLERK. Mr. Smith, aye. 

Chairman SENSENBRENNER. Further members—the gentleman 

from Texas, Mr. Gohmert. 

Mr. GOHMERT. Aye. 

The CLERK. Mr. Gohmert, aye. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their votes? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 23 ayes, 14 noes, and two 

pass. 

Chairman SENSENBRENNER. And the motion to report favorably 

is agreed to. 

Without objection, the bill will be reported favorably to the 

House in the form of a single amendment in the nature of a substitute——

Mr. SCOTT. Mr. Chairman, reserving the right to object, and I’d 

ask under the reservation whether or not we can put information 

into the record at this point. 

Chairman SENSENBRENNER. If the gentleman will allow me to request permission for members to include additional, dissenting, or 

minority views, that’s the way you do it. 

Mr. SCOTT. Unanimous consent to enter into the record a document. 

Chairman SENSENBRENNER. There is a unanimous consent presently pending. Does the gentleman withdraw his reservation? 

Mr. SCOTT. I withdraw. 

Chairman SENSENBRENNER. Without objection, the bill will be reported favorably to the House in the form of a single amendment 

in the nature of a substitute incorporating the amendments adopted here today. 

Without objection, the staff is directed to make any technical and 

conforming changes, and all members will be give 2 days as proVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00443 Fmt 6659 Sfmt 6601 E:\HR\OC\HR174P1.000 HR174P1
440

vided by the House Rules in which to submit additional, dissenting, 

supplemental, or minority views. 

For what purpose does the gentleman from Virginia seek recognition? 

Mr. SCOTT. Mr. Chairman, I ask unanimous consent for a document outlining some problems with the PATRIOT Act prepared by 

the Democratic Staff. 

Chairman SENSENBRENNER. Without objection, the document will 

be included in the record at this point. 

[The information follows:]

441


3199I1A.eps
442


3199I1B.eps
443

Chairman SENSENBRENNER. Pursuant to the authority granted 

the Chair earlier today, the Committee stands in recess until 9:30 

tomorrow. 

[Whereupon, at 9:45 p.m., the Committee recessed, to reconvene 

at 9:30 a.m., Thursday, July 14, 2005.]

(444)

1 A Complete List of Communities That Have Passed Resolutions, is available at http://

www.aclu.org/SafeandFree/SafeandFree.cfm?ID=11294&c=207 (last checked July 18, 2005). 

Colorado, Montana, Idaho, Maine, Vermont, Alaska, and Hawaii have all passed statewide resolutions. Resolutions have also been passed in such communities as Lincoln, Nebraska; Des 

Moines, Iowa; Savannah, GA; Pittsburgh, PA; Dallas, TX; New York, New York; Atlanta, GA; 

Portland, Oregon; Philadelphia, PA; Dillion, Montana; and Detroit, Michigan. 2Other groups opposing the PATRIOT Act include the American-Arab Anti-Discrimination 

Committee, American Association of Law Libraries, American Baptist Churches USA, American 

Humanist Association, American Policy Center, Americans for Tax Reform, Arab American Institute, Asian Americans for Equality, Asian American Legal Defense & Education Fund, Association of American Physicians and Surgeons, Association of Research Libraries, Bill of Rights 

Defense Committee, Center for Human Rights and Constitutional Law, Center for Justice and 

Accountability, Center for National Security Studies, Chicago Committee to Defend the Bill of 

Rights, Commission on Social Action of Reform Judaism, Consumer Action, Doctors for Disaster 

Preparedness, Electronic Privacy Information Center, First Amendment Foundation, F.I.R.S.T. 

Project, Inc., Friends Committee on National Legislation, Hate Free Zone Campaign of Washington, Immigrant Defense Project of the New York State Defenders Association, Immigrant 

Legal Resource Center, International Institute of Boston, Japanese American Citizens League, 

Korean Resource Center, Latin American Integration Center, Lawyers Committee for Human 

Rights, League of United Latin American Citizens, Mennonite Central Committee U.S., Washington Office, Mexican American Legal Defense and Educational Fund (MALDEF), Multiracial 

Activist, National Asian Pacific American Legal Consortium, National Coalition Against Repressive Legislation, National Council of La Raza, National Employment Law Project, National Immigration Law Center, National Lawyers Guild, New York Immigration Coalition, Northwest 

Immigrant Rights Project, OMB Watch, Organization of Chinese Americans, Police Accountability Project, Presbyterian Church USA, Washington Office, Special Libraries Association, 

DISSENTING VIEWS TO H.R. 3199, THE ‘‘USA PATRIOT AND 

INTELLIGENCE REFORM REAUTHORIZATION ACT OF 2005’’ 

We dissent from the passage of H.R. 3199 in its present form. 

We oppose this legislation for several reasons. First, we never 

have been given the facts necessary to fully evaluate the operation 

of the PATRIOT Act. Second, there are numerous provisions in 

both the expiring and other sections of the PATRIOT Act that have 

little to do with combating terrorism, intrude on our privacy and 

civil liberties, and have been subject to repeated abuse and misuse 

by the Justice Department. Third, the legislation does nothing to 

address the many unilateral civil rights and civil liberties abuses 

by the Administration since the September 11 attacks. Finally, the 

bill does not provide law enforcement with any additional real and 

meaningful tools necessary to help our nation prevail in the war 

against terrorism. Since 2002, 389 communities and seven states 

have passed resolutions opposing parts of the PATRIOT Act, representing over 62 million people.1 Additionally, numerous groups 

ranging the political spectrum have come forward to oppose certain 

sections of the PATRIOT Act and to demand that Congress conduct 

more oversight on its use, including the American Civil Liberties 

Union, American Conservative Union, American Immigration Lawyers Association, American Library Association, Center for Constitutional Rights, Center for Democracy and Technology, Common 

Cause, Free Congress Foundation, Gun Owners of America, Lawyers’ Committee for Civil Rights, National Association for the Advancement of Colored People (NAACP), National Association of 

Criminal Defense Lawyers, People for the American Way, and numerous groups concerned about immigrants’ rights.2

445

Square One Media Network, Unitarian Universalist Association of Congregations, United Electrical, Radio and Machine Workers of America, Washington Defenders Immigration Project, 

Women Against War Young Korean-American Service & Education Center (YKASEC). In addition, a new coalition of conservative and liberal groups have come together to urge increasing 

checks and balances on the powers the government already has: Association of American Physicians and Surgeons, American Civil Liberties Union, American Conservative Union, Americans 

for Tax Reform, American Policy Center, Citizens Committee for the Right to Keep and Bear 

Arms, Eagle Forum, Free Congress Foundation, Libertarian Party, Gun Owners of America, Second Amendment Foundation. 

While the PATRIOT Act may not deserve all of the ridicule that 

is heaped against it, there is little doubt that the legislation has 

been repeatedly and seriously misused by the Justice Department. 

Consider the following: • It has been used more than 150 times to secretly search 

an individual’s home, with nearly 90% of those cases having 

had nothing to do with terrorism. • It was used against Brandon Mayfield, an innocent Muslim American, to tap his phones, seize his property, copy his 

computer files, spy on his children, and take his DNA, all without his knowledge. • It has been used to deny, on account of his political beliefs, 

the admission to the United States of a Swiss citizen and 

prominent Muslim Scholar to teach at Notre Dame University. • It has been used to unconstitutionally coerce an Internet 

Service Provider to divulge information about e-mail activity 

and web surfing on its system, and then to gag that Provider 

from even disclosing the abuse to the public. • Because of gag restrictions, we will never know how many 

times it has been used to obtain reading records from library 

and bookstores, but we do know that libraries have been solicited by the Department of Justice—voluntarily or under threat 

of the PATRIOT Act—for reader information on more than 200 

occasions since September 11. • It has been used to charge, detain and prosecute a Muslim 

student in Idaho for posting Internet website links to objectionable materials, even though the same links were available on 

the U.S. Government’s web site. 

Even worse than the PATRIOT Act has been the abuse of unilateral powers by the Administration. Since September 11, our government has detained and verbally and physically abused thousands of immigrants without time limit, for unknown and unspecified reasons, and targeted tens of thousands of Arab-Americans for 

intensive interrogations and immigration screenings. All this 

serves to accomplish is to alienate Muslim and Arab Americans—

the key groups to fighting terrorism in our own county—who see 

a Justice Department that has institutionalized racial and ethnic 

profiling, without the benefit of a single terrorism conviction. 

Nor is it helpful when our government condones the torture of 

prisoners at home and abroad, authorizes the monitoring of 

mosques and religious sites without any indication of criminal activity, and detains scores of individuals as material witnesses because it does not have evidence to indict them. This makes our citizens less safe not more safe, and undermines our role as a beacon 

of democracy and freedom. 

While the Majority asserts it is not the duty of this Committee 

to respond to these abuses, we believe that ignoring these and 

446

other cases of abuse by our own government constitutes an abdication of our responsibility as legislators, and should be addressed by 

this legislation. 

The following is a brief background and description of the PATRIOT Act and the proposed reauthorization legislation, followed 

by a listing of our various concerns with the legislation.

TABLE OF CONTENTS 

I. Background and Description of Legislation ................

II. We Have Never Been Given the Necessary Facts 

to Properly Evaluate the PATRIOT Act ....................

III. There are Numerous Provisions in Both the Expiring 

and Other Parts of the PATRIOT Act that are 

Largely Unrelated to Terrorism and Unnecessarily 

Intrude on Privacy Rights and Other Civil Liberties 

447

A. Specific Concerns with Expiring Provisions 

1. Sec. 206—Roving Surveillance Authority 

under the Foreign Intelligence Surveillance 

Act 

2. Sec. 209—Seizure of Voicemail Messages 

Pursuant to Warrants 

3. Sec. 212—Emergency Disclosures of Communications Held by Phone Companies and 

Internet Service Providers 

4. Sec. 214—Pen Register and Trap and Trace 

Authority Under FISA 

5. Sec. 215—Access to Records and Other 

Items under the Foreign Intelligence Surveillance Act (Library Provision) 

6. Sec. 218—Foreign Intelligence Information 

7. Sec. 220—Nationwide Service of Search 

Warrants for Electronic Evidence 

8. ‘‘Lone Wolves’’ as Agents of a Foreign 

Power 

B. Specific Concerns with Other Provisions of the 

Patriot Act 

1. Sec. 213—Authority for Delaying Notice of 

the Execution of a Warrant (Sneak and 

Peek Provision) 

2. Sec. 216—Extension of Trap and Trace/Pen 

Orders 

3. Sec. 411—Revocation of Visas 

4. Sec. 412—Detention of Immigrants 

5. Sec. 505—Miscellaneous National Security 

Authorities ‘‘National Security Letters’’ 

6. Sec. 802—Definition of Domestic Terrorism 

7. Sec. 805—Material Support for Terrorism 

C. General Concerns with Patriot Act Reauthorization 

1. Lack of a General Sunset 

2. Lack of General Oversight 

IV. The Legislation Does Nothing to Address the Many 

Unilateral Abuses of The Administration in the 

War Against Terror .....................................................

448

A. Material Witness Statute 

B. Torture 

C. Rendition 

D. Enemy Combatants 

E. Selective Enforcement of Immigration Provision/Racial Profiling 

F. Excessive Collection of Personal Data 

G. Unauthorized Detention of Aliens 

H. Closed Immigration Trials 

I. Attorney General’s Guidelines on Domestic Surveillance 

J. Mis-Classification of Terrorism Investigations 

K. Safe Havens for Terrorist Assets 

V. The Legislation Does Not Provide Law Enforcement 

with the Resources and Tools It Needs to Meaningfully Combat Terrorism ...............................................

A. Preventing Terrorists from Buying Guns 

B. Preventing the Sale and Manufacture of .50-

caliber Guns 

C. Regulating the Sale of Smokeless and Black 

Powder 

D. Increasing Grants to First Responders 

E. Securing our Nation’s Ports 

F. Eliminating Trade with Terrorist Countries 

G. Penalizing those who Leak Classified Information 

H. Improving the Terrorist Watch List 

VI. Description of Amendments Offered by Democratic 

Members .......................................................................

VII. Conclusion ......................................................................

Appendix A: Section-by-Section Summary of the USA PATRIOT Act of 2001, H.R. 3162 ................................................

Appendix B: Summary of 16 Expiring Provisions ....................

I. BACKGROUND AND DESCRIPTION OF LEGISLATION

The PATRIOT Act was passed into law on October 26, 2001. A 

major concern with this legislation is the process by which it was 

enacted into law. Within days of the September 11 attacks, thenAttorney General John Ashcroft publicly announced that the Justice Department was drafting a new bill that Congress should pass 

within one week because the new powers were needed to fight terrorism. An initial draft of the legislation was leaked to the media 

soon after; it is believed that Republican Members and staff of the 

Committee were provided actual copies of the bill. A few days after 

the draft was leaked, the Department sent a new, official draft to 

Congress that consisted of its wish list of new law enforcement, immigration, and intelligence authorities. The hearing was so rushed 

that then-Attorney General Ashcroft would not even submit himself to a full round of questions by the members. 

The U.S. House Judiciary Committee worked out a bipartisan 

compromise with the Administration. The Committee passed the 

compromise legislation in the form of H.R. 2975 on an unpreceVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00452 Fmt 6604 Sfmt 6602 E:\HR\OC\HR174P1.001 HR174P1
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3 H.R. Rep. No. 236, 107th Cong., 2d Sess. (2001). 

4See David G. Savage & Eric Lichtblau, Ashcorft Deals with Daunting Responsibilities, L.A. 

Times, Oct. 28, 2001, at A10 (‘‘When the Attorney General’s imposed deadline [for passage of 

new terrorism legislation] passed, Ashcroft suggested that if a second terrorist attack occurred, 

the recalcitrant lawmakers would deserve the blame.’’). 5Senator Russ Feingold (D–WI) voted ‘‘No’’ and Senator Mary Landrieu (D–LA) did not vote. 

6 Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108–458, Sections 

6603 and 6001, respectively. 

dented 36–0 vote.3 While H.R. 2975 was being prepared for floor 

consideration, however, the Administration reneged on the deal 

and Chairman Sensenbrenner introduced a new and more aggressive terrorism bill, H.R. 3108, on the morning of October 12, 2001. 

That same day, the Rules Committee issued the rule for H.R. 2975 

and provided that H.R. 3108 would be the adopted substitute 

amendment to H.R. 2975. The very same day, the House passed 

the new legislation by a vote of 337–79 under a closed rule. 

While the House was moving forward on new legislation, the Attorney General turned his attention to the Senate, which had yet 

to pass a new terrorism bill. The Attorney General publicly indicated that Senate Democrats questioning the scope of the Department’s new bill would be responsible for future terrorist attacks if 

a new terrorism law was not passed in time.4

Compromise discussions proceeded and eventually broke down. 

Based in part on these discussions, Chairman Sensenbrenner introduced the new legislation as H.R. 3162 on October 23, 2001. H.R. 

3162 was brought straight to the floor under suspension of the 

rules and passed the House the next day by a vote of 357–66. The 

Senate passed the bill on October 25, 2001, by a vote of 98–1.5

Although it was originally hoped that the legislation would simply give the Justice Department a set of specific tools to help it 

fight terrorism, the legislation ended up being a broad expansion 

of law enforcement powers that the Department had been seeking 

for years, but had been unable to convince Congress to enact. 

As enacted into law, the PATRIOT Act included more than 160 

separate sections (Appendix A provides a section by section description of those provisions). In addition, due in part to the concern by 

many Members with the rushed nature and broad scope of the PATRIOT Act, it was determined that 16 of the sections authorizing 

new surveillance powers should sunset on December 31, 2005 (Appendix B contains a more detailed section by section description of 

those 16 expiring provisions). 

H.R. 3199 would make permanent all of the sunset provisions of 

the PATRIOT Act, save Section 206, concerning John Doe Roving 

Wiretaps, and Section 215, concerning foreign intelligence orders 

for any tangible thing, which are renewed for 10 years each. It also 

makes permanent the material support and lone wolf authorities 

created in the intelligence reform bill last fall.6

The bill makes several changes to current law. First, H.R. 3199 

allows a Section 215 recipient to challenge his order in writing before a three-judge panel of the Foreign Intelligence Surveillance 

Court (FISC) in Washington, DC, and assert that FISA, as written 

was wrongly applied to his order. Arguably, it also provides that 

a person may discuss his 215 order with his attorney. 

Second, H.R. 3199 creates a ‘‘return’’ on Section 206 John Doe 

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7The 9/11 Commission Report, National Commission on Terrorist Attacks Upon the United 

States, at 395. 

tap is issued, the Justice Department return to the FISA court and 

certify what facilities were ultimately tapped within 10 days. 

Third, the legislation amends Section 203(b) of the PATRIOT 

Act. Section 203(b) allows federal agencies to share information it 

gathers from electronic, oral and wire intercepts with other departments and agencies. This bill would require the government to notify the court that approved the original surveillance of the sharing. 

Fourth, H.R. 3199 alters Section 207 of the PATRIOT Act pertaining to the length of FISA orders. It limits the new extended durations to non-U.S. persons, and extended pen register and trap 

and trace orders to one year. 

Fifth, during the markup, a Lungren amendment was accepted 

that created an annual reporting requirement on Section 212, 

which immunizes private companies for their voluntary disclosures 

of electronic information to law enforcement in emergency situations. 

Sixth, during markup, a Schiff amendment was accepted which 

would add to the list of activities which, if done willfully, will result 

in violating the statute which prohibits the planning of terrorist attacks on mass transportation (18 USC 1993(a)(3)). 

Seventh, during markup, a Lofgren amendment was accepted 

which amends Section 1001 of the PATRIOT Act to require the Inspector General of the Department of Justice to also report on the 

detentions of persons by the United States, including information 

about the length of detention, the offense, and the conditions and 

frequency of their access to counsel.

Eighth, during markup, a Schiff amendment was accepted which 

(a) adds to the list of predicate offenses which are considered ‘‘federal crimes of terrorism’’; (b) allows for the forfeiture of property 

involved in the trafficking of weapons of mass destruction; and (c) 

adds numerous crimes related to terrorism to the list of offenses for 

which oral and wire communications may be intercepted under 18 

U.S.C. 2516. 

Finally, during the markup, Mr. Nadler and Mr. Flake offered a 

bipartisan amendment to address the notification delay period relating to the Section 213 ‘‘sneak and peek’’ provision. Under their 

amendment, the initial period of delayed notification of secret 

searches may not be for more than 180 days, and extensions may 

be given for not more than 90 days at a time. 

It is important to note that the 9/11 Commission recommended 

that to retain any new authorities, ‘‘The burden of proof for retaining a particular government power should be on the executive to 

explain (a) that the power materially enhances security and (b) 

that there is adequate supervision of the executive’s use of those 

powers to ensure protection of civil liberties.’’ 7 We have never been 

given the facts necessary to properly evaluate its operation; however, based upon the information we have been able to glean our 

review indicates that this burden has not been met. For these and 

the reasons set forth herein, we oppose H.R. 3199 

451

8Letter from the Honorable Alberto Gonzales, Attorney General of the United States, to the 

Honorable F. James Sensenbrenner, Jr., Chairman, U.S. House Comm. on the Judiciary 3–4 

(July 12, 2003). 9Letter from the Honorable Jamie E. Brown, Acting Ass’t Attorney General, U.S. Dep’t of Justice, to the Honorable F. James Sensenbrenner, Jr., Chairman, U.S. House Comm. on the Judiciary 56 (May 13, 2003). 10 Id. at 50. 11 Id. at 48. 12Warren Richey & Linda Feldmann, Has Post-9/11 Dragnet Gone too Far?, Christian Science 

Monitor, Sept, 12, 2003, at 1; Howard Troxler, New Powers? Not Unless the Feds Get Old Ones 

Right, St. Petersburg Times, Sept. 10, 2003, at 1B; Jack Torry, Opinions Clash on TerrorismFighting Patriot Act, Columbus Dispatch, Sept. 7, 2003, at 1C; Peter Schworm, Librarians Fight 

Search Law, Boston Globe, Aug. 21, 2003 at 1; Nat Hentoff, Ashcroft Moves to Encroach further 

on our Liberties, Chicago Sun-Times, Aug. 24, 2003, at 30 (op-ed); James Bovard, America 

Continued

II. WE HAVE NEVER BEEN GIVEN THE NECESSARY FACTS TO

PROPERLY EVALUATE THE PATRIOT ACT

Neither the original USA PATRIOT Act nor this reauthorization 

legislation were subject to proper oversight. Since the enactment of 

the PATRIOT Act, the Department has failed to account for its use. 

In addition, the pending legislation was deprived of any deliberative consideration prior to the full Committee markup. 

First, the Department has thwarted efforts on the part of Democratic Members to learn how the PATRIOT Act has been enforced. 

While the Department has responded to Committee inquiries pertaining to the Act, in many instances it states that it does not keep 

track of how certain authorities are used or qualifies the answers 

it does give. For instance, in its most recent submission to the 

Committee, the Department states it does not know how many 

times Foreign Intelligence Surveillance Act authorities have been 

used to investigate terrorism crimes versus other offenses.8

On April 1, 2003, the Committee sent the Department an exhaustive series of questions on the Act. In response to a question 

about how many mosques have been contacted for membership 

lists, the Department merely states that it has conducted demographic surveys of mosques; it simply ignores the question.9 It further states it does not keep racial or ethnic characteristic information on material witness detainees and, as such, is unable to answer a question about that matter.10 When it chooses to answer a 

question, the Department often includes a qualifier, making the answer meaningless. For example, when replying to a question about 

material witness detainees since September 11, 2001, having access 

to legal counsel, the Department says that ‘‘every single person detained as a material witness as part of the September 11 investigation has been represented by counsel.’’ 11 The answer left open the 

possibility that a material witness as part of a non-September 11 

terrorism investigation was denied access to counsel. 

In addition, the Department prohibits public review of its activities by sending some information about the PATRIOT Act under 

classified cover. Interestingly, in at least two instances, the Department has declassified relevant information only when it was politically expedient. In the summer of 2003, there was significant criticism of section 215 of the Act from the media, civil liberties groups, 

and libraries and bookstores based on the belief that the provision 

gave unconstitutionally broad power to seize documents and things 

about anybody, including patrons’ library and bookstore records in 

violation of the First Amendment.12 Attempting to quell such rising 

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Fights for Freedom to Read, Balt. Sun, Aug. 18, 2003, at 15A; Congress Should Reform Dangerous Patriot Act, Det. News, Aug. 1, 2003 at 10A (editorial); Ellen Goodman, It’s Time for Congress to Take Away Ashcroft’s Fishing License, Balt. Sun, at July 24, 2003, at 17A (editorial); 

Lillian Thomas, Rights Groups Rally Opposition to National Anti-Terrorism Law, Pittsburgh 

Post-Gazette, July 17, 2003, at B5; Don Behm, Bookstores Balk at Record-Seizure Law, Milwaukee Journal-Sentinel, June 23, 2003, at 2A; Wayne Woodlief, Ashcroft’s Act Borders on Unpatriotic, Boston Herald, June 8, 2003, at 25 (op-ed). 13Memorandum from the Honorable John D. Ashcroft, Attorney General of the United States, 

to the Honorable Robert S. Mueller, Director, FBI (Sept. 18, 2003). 14 Jason Zengerle, ‘‘Critiquing Ashcroft’s 9/11 Show,’’ The New Republic, April 15, 2004. 15Letter from the Honorable F. James Sensenbrenner, Jr., Chairman, U.S. House Comm. on 

the Judiciary, to the Honorable Alberto Gonzales, Attorney General of the United States (May 

19, 2005) (transmitting questions on behalf of himself). 16Letter from the Honorable F. James Sensenbrenner, Jr., Chairman, U.S. House Comm. on 

the Judiciary, to the Honorable Alberto Gonzales, Attorney General of the United States (May 

19, 2005) (transmitting questions on behalf of Democratic Members). 17Letter from the Honorable Alberto Gonzales, Attorney General of the United States, to the 

Honorable F. James Sensenbrenner, Jr., Chairman, U.S. House Comm. on the Judiciary (June 

10, 2005) (sent under classified cover). 18Letter from the Honorable Alberto Gonzales, Attorney General of the United States, to the 

Honorable F. James Sensenbrenner, Jr., Chairman, U.S. House Comm. on the Judiciary (July 

12, 2005). 19Letter from Perry Apelbaum, Minority Chief Counsel, House Judiciary Committee, to Assistant Attorney General William E. Moschella, July 7, 2005. Letter on file with Committee. 

criticism, on September 18, 2003, the Attorney General declassified 

a memorandum he had written to FBI Director Robert Mueller 

showing that section 215 had never been used as of that date.13 In 

addition, then-Attorney General John Ashcroft declassified a memo 

written by 9/11 Commissioner Jamie Gorelick concerning the ‘‘wall’’ 

between criminal and intelligence investigations as a way to turn 

attention away from his failure to appropriately focus on 

counterterrorism.14

The Department’s lack of accountability is even more troubling 

considering that it was derelict in its duties to Congress just prior 

to the markup. On May 19, 2005, over one month after the Committee’s April 6, 2005 hearing with the Attorney General, Chairman Sensenbrenner transmitted to the Department a series of 

questions about the Act for himself,15 Ranking Member John Conyers, Rep. Zoe Lofgren, and Rep. Martin Meehan (D–MA).16 While 

the Department answered the Chairman’s questions on June 10, 

2005,17 the answers to the questions submitted by the three Democratic Members were answered only on the morning of the full 

Committee markup over one month later, and most of the answers 

were incomplete and unresponsiive.18

Similarly, Rep. Zoe Lofgren attempted to exercise her oversight 

authority and requested to see applications for search and seizure 

orders obtained under Section 214 (pen register and trap-and-trace 

orders) and Section 215 (business records) of the USA PATRIOT 

Act. A letter was sent on behalf of Ms. Lofgren and the other Members of the Committee who wished to review these order applications on July 7, 2005.19 The letter asked that they be allowed to 

review these orders on either Monday or Tuesday, July 11 or July 

12, as the Committee was set to markup H.R. 3199 on Wednesday. 

On Monday, July 11, two days before the Committee was set to 

meet, DOJ responded that usually only redacted copies are provided to the Intelligence Committees; DOJ was asked to determine 

if our members could also review these orders. Finally, at 5:50 on 

Tuesday, July 12, 2005, approximately 16 hours before the Committee markup was to begin, the DOJ responded that Committee 

members could review a sample of FISA applications at the Senate 

453

Select Committee on Intelligence, and could not review FISA applications at main Justice. 

This entire process illuminates the steps DOJ has taken to prevent the Democratic members from performing effective oversight. 

Second, Ms. Lofgren and the other Committee members have the 

authority and necessary clearance to review these orders and there 

was no clear reason why the Judiciary Committee members should 

be blocked from reviewing orders that the Intelligence Committees 

can review. Finally, this interchange undermines one of the main 

reasons the Majority uses to justify making the PATRIOT Act permanent the Majority argues that the Members can exercise oversight if they so choose, and that they have not chosen to exert this 

oversight. Here, the Members attempted to review the authority 

granted to law enforcement by the PATRIOT Act under FISA and 

they were deliberately delayed and thwarted in their attempt to 

perform their constitutional duty of oversight of the executive 

branch. Thus, it is not that the Members do not wish to perform 

oversight of the use of these authorities; rather, it is that the Administration has conducted a deliberate attempt to deny and block 

certain Members ability to do so. 

The concerted effort to thwart any meaningful oversight and review of the Patriot Act is also evident by the manner in which the 

Majority chose to respond to the Minority’s request for additional 

day of oversight hearings on the legislation. During the course of 

the Committee’s oversight hearing with Deputy Attorney General 

Comey, and pursuant to House Rule XI, clause 2(j)(1), the Minority 

requested an additional day of oversight hearings on the reauthorization of the Patriot Act. The purpose of the additional day of 

hearings was to provide Members with a last chance opportunity 

to explore important issues within the scope of the Patriot Act 

which up until that point had not been adequately covered. 

Unfortunately in responding of the Minority’s request, the Majority decided to engage in a series of actions which frustrated the Minority’s party efforts to conduct such a hearing. Namely, the Majority chose to schedule the requested day of hearings with less than 

forty-eight hours notice; required the Minority to provide the Majority with a list of witnesses and witness testimony in less than 

twenty-four hours; decided to schedule the hearing at 8:30 am on 

a Friday, a date in which there where no votes on the House floor; 

and chose to unilaterally adjourn the hearing without first obtaining or seeking either a unanimous consent request or a vote of the 

Committee members present. As pointed out in the resolution offered by Mr. Nadler raising a question of privilege regarding these 

actions, many of these aforementioned deeds were in clear violation 

of numerous House rules and certainly contrary to the Committee’s 

usual custom and practices.

Finally, Members of the Committee were deprived of any meaningful review of H.R. 3199 after its introduction. The Majority distributed the legislation only on the late afternoon of Friday, July 

8, 2005, just five days before it was scheduled to be considered by 

the Committee. In addition, this legislation was not subject to any 

hearing, either at the full Committee or subcommittee level, or to 

a subcommittee markup. Hearings and subcommittee markups are 

preliminary stages of review that are customary in the House for 

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20We would note that even in the immediate aftermath of the September 11 attacks, a preliminary draft of the PATRIOT Act was subject to a legislative hearing in the Committee. Administration’s Draft Anti-Terrorism Act of 2001: Hearing Before the House Comm. on the Judiciary, 107th Cong., 1st Sess. (Sept. 24, 2001). 21 John Podesta, ‘‘USA PATRIOT Act: The Good, the Bad and the Sunset,’’ Human Rights 

Magazine, Section of Individual Rights and Responsibilities, American Bar Association, Winter 

2002. 22 ‘‘Let the Sun Set on PATRIOT,’’ Electronic Frontier Foundation, available at www.eff.org. 23Oversight answers, submitted by Daniel J. Bryant, Assistant Attorney General, July 26, 

2002, on file with the House Judiciary Committee; The PATRIOT Act: Myth vs. Reality, U.S. 

Department of Justice, September 2003. 

any legislation; they permit the Members and other interested parties to consider and debate specific legislation prior to final consideration before either the full Committee or the full House.20 The 

Majority, unfortunately, bypassed these important steps and immediately scheduled H.R. 3199 for a full Committee vote. 

III. THERE ARE NUMEROUS PROVISIONS IN BOTH THE EXPIRING AND

OTHER PARTS OF THE PATRIOT ACT THAT ARE LARGELY UNRELATED TO TERRORISM AND UNNECESSARILY INTRUDE ON PRIVACY

RIGHTS AND OTHER CIVIL LIBERTIES

There are numerous provisions in the PATRIOT Act, that have 

raised concerns. The following is a description of some of the concerns and issues. 

A. SPECIFIC CONCERNS WITH EXPIRING PROVISIONS

1. Sec. 206—Roving surveillance authority under the Foreign Intelligence Surveillance Act 

This section allows the FBI to use roving wiretaps under FISA. 

This means that the FBI can obtain a single court order to tap any 

phone they believe a foreign agent would use, instead of getting 

separate court orders for each phone. Additionally, the government 

does not need to name the target, thus allowing so-called ‘‘John 

Doe’’ wiretaps. The impact of allowing ‘‘John Doe’’ roving wiretaps 

is that the government can legally tap almost any phone of almost 

any person without having to show that the person is in any way 

connected to espionage or terrorism, or even suspected of criminal 

wrongdoing. Thus, the Fourth Amendment rights of ordinary citizens against such search and seizures can be completely circumvented. 

Few disagree that roving wiretaps are important. Indeed, they 

have been useful in criminal investigations since 1986. However, 

FISA roving wiretaps go far beyond criminal wiretaps. First, FISA 

allows for blanket tapping, such as tapping all the payphones in 

the target’s neighborhood or all of his relatives, without showing 

that the target will actually use the device.21 Second, agents seeking a roving wiretap need not even identify a specific suspect and 

may instead get ‘‘John Doe’’ warrants.22 These add up to roving 

‘‘John Doe’’ warrants that require so little specificity that they can 

be easily abused. The number of times this authority has been used 

and in what manner was classified 23 until April 6 2005, when the 

Attorney General admitted to using it 49 times since the PATRIOT 

Act passed. 

The Justice Department argues that this authority is available 

in criminal cases. However, a criminal wiretap application must inVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00458 Fmt 6604 Sfmt 6602 E:\HR\OC\HR174P1.001 HR174P1
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24 18 U.S.C.A § 2518(1)(b) (2005). 25 50 U.S.C.A. 2518(11) (2005). 26The Justice Department will claim that it has the authority to issue similar wiretaps in 

criminal cases, and cites support from three circuits. Yet, the cases that found the use of roving 

wiretaps to be constitutional did so because of the other requirements in the Title III statute 

that make the warrant particular enough to meet Fourth Amendment muster. These requirements are not in FISA, however. Also, it appears that those cases were not about ‘‘John Doe’’ 

wiretaps and therefore not quite as ‘‘similar’’ as the Justice Department claims. 27 A Title III search warrant or order requires what is known at ‘‘probable cause plus.’’ Rather 

than showing there is probable cause to believe, for example, that a particular phone line is 

being used in connection with criminal activity, a Title III order must prove that the particular 

phone line is ‘‘clearly being used’’ for illegal purposes. Furthermore, in order to obtain a Title 

III warrant, the officer must show why normal investigative procedures have failed. 

clude specific information about the crime, the location to be 

tapped and the identity of the target, if known.24 A judge must also 

find probable cause that (1) the target has or will commit a crime, 

(2) the communications to be seized are related to that crime, and 

(3) the phones to be tapped will be used by the target, as well as 

that normal investigative procedures have failed or will fail. 

This statute does allow roving wiretaps. However, a roving wiretap triggers a whole new section that requires that the application 

‘‘identif[y] the person committing the offense and whose communications are to be intercepted.’’ 25 In other words, the Justice Department must choose between a John Doe or a roving wiretap in 

criminal cases—it cannot have both at the same time.26

2. Sec. 209—Seizure of voicemail messages pursuant to warrants 

Section 209 of the PATRIOT Act expands the ability of law enforcement to seize voicemails. Before the Act, voicemail messages 

on an answering machine in one’s home could be seized pursuant 

to a search warrant. Voicemail messages stored with a service provider, however, required a Title III order. A Title III order actually 

offers higher protections than a search warrant: a Title III warrant 

requires more information than just a showing of probable cause 

and the probable cause section of a Title III order is more extensive 

than an affidavit for a search warrant.27

Some of us are concerned Section 209 may unreasonably expand 

the authority of law enforcement to seize the content contained in 

voicemail messages by amending the law to treat stored voicemails 

like other stored data. Section 209 may circumvent the Fourth 

Amendment requirements of notice and probable cause for 

voicemails stored by a third party, leading to a real concern about 

how private and personal communications should be treated in connection with criminal investigations. 

Section 209 amends the law to treat stored voicemails like other 

stored data (such as emails). While Section 209 seemingly requires 

a warrant to seize voicemail messages, the law amended by this 

provision actually makes a key distinction between older and newer 

stored emails, and this distinction now applies to stored voicemails. 

Those voicemails that are considered ‘‘old’’ do not require a warrant 

or Title III order to be seized—which requires probable cause—but 

rather merely require a subpoena. Therefore, a possibly reasonable 

power of seizing stored voicemails has been expanded unreasonably 

to allow their seizure by any prosecutor at any time, thus vitiating 

existing privacy rights. And, merely because the voicemails are 

stored by a third party, rather than stored on a home answering 

machine, they can be seized without notice to the target. This vioVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00459 Fmt 6604 Sfmt 6602 E:\HR\OC\HR174P1.001 HR174P1
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28 389 U.S. 347, 351 (1967). 29See Report From the Field: The USA PATRIOT Act at Work, U.S. Department of Justice, 

July 2004. 30Pub. L. No. 107–296 (2002). 31Let the Sun Set on PATRIOT, Electronic Frontier Foundation, available at www.eff.org. 32The Attorney General may authorize emergency orders, but must then apply for a FISA 

Court warrant within 72 hours. If it is not granted, the exclusionary rule prevents the information from being used in court. 

lates the longstanding constitutional principal that ‘‘the Fourth 

Amendment protects people, not places,’’ expressed by the Supreme 

Court in Katz v. United States.28 As a result, Section 209 allows 

law enforcement to seize the content contained in voicemails without any of the necessary Fourth Amendment protections. Finally, 

Section 209 applies to not just to terrorism investigations, but to 

any criminal investigation. 

3. Sec. 212: Emergency disclosures of communications held by 

phone companies and Internet service providers 

This section permits telephone companies and Internet Service 

Providers (ISPs) to disclose to the government, without penalty, 

customer communications and records if they think there is a danger of death or serious injury. This section precludes liability regardless of whether the company innocently stumbles on the information itself and approaches the government, or whether law enforcement initiates the disclosure itself. Because this section directly amended Title 18 of the U.S. Code, it can be used in any 

run-of-the-mill criminal investigation and has no ties to terrorism 

cases. In fact, all of the examples cited by the Justice Department 

are non-terror cases, including a bomb threat against a school, numerous kidnaping cases, and computer hacking threats.29

Section 225 of the Homeland Security Act (HSA) of 2002 30 made 

permanent the provision that allowed the disclosure of content. 

Only the portion of Section 212 that authorized the disclosure of 

records is scheduled to sunset at the end of the year. However, it 

is important to note that the new content disclosure rules in the 

HSA that prematurely reversed the PATRIOT Act sunset are even 

more permissive than originally passed by the PATRIOT Act. By 

all accounts, the new provision is far worse as it, ‘‘lower[s] the relevant standard from ‘reasonable belief’ of a life-threatening emergency to a ‘good faith belief,’ allow[s] communications providers to 

use the emergency exception to disclose data to any government entity, not just law enforcement, and drop[s] the requirement that the 

threat to life or limb be immediate.’’ 31

There are several concerns with the emergency disclosure provision, Section 212: First, there is absolutely no judicial oversight, including after-the-fact review by a court such as what happens 

under FISA.32 The Justice Department has not addressed why a 

similar provision could not be put into the criminal law. Second, no 

notice is given to the target, even after the emergency has been resolved. Third, there is no consequence for a rogue or careless law 

enforcement officer who may overstate a threat in order to elicit 

communications without obtaining a subpoena or warrant. Under 

Fourth Amendment controlled searches, the government would be 

prohibited from using the evidence at trial, yet there appears to be 

no such protection for these disclosures. Finally, the Homeland SeVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00460 Fmt 6604 Sfmt 6602 E:\HR\OC\HR174P1.001 HR174P1
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33Pub. L. No. 107–296 § 225(d) (2002). 34 A pen register is used to record the phone numbers that are dialed from a target phone. 

A trap-and-trace is used to record the phone numbers of the incoming calls to a target phone. 35Smith v. Maryland, 442 U.S. 735, 744 (1979) (using the phone involved a third party—the 

phone company—and therefore destroyed any expectation of privacy the target had). 36See, for example, Electronic Privacy Information Center ‘‘The USA PATRIOT Act,’’ at 

www.epic.org/privacy/terrorism/usapatriot/.

curity Act of 2002 required each entity to receive one of these disclosures to report it to the Attorney General within 90 days.33 The 

Attorney General is then to report to Congress, but never has. Unfortunately, H.R. 3199 makes no effort to reign these powers in and 

provide even limited safeguards to ensure these authorities are not 

abused. 

4. Sec. 214—Pen register and trap and trace authority under FISA 

This section made it easier for the FBI to get a pen register or 

trap-and-trace under FISA.34 The FBI needs to prove the order is 

needed to obtain foreign intelligence information not concerning a 

U.S. person or to protect against international terrorism or clandestine intelligence activities. Prior to the PATRIOT Act, the FBI 

needed to establish that the telephone line in question had been 

used or was about to be used in connection with terrorism or a 

crime; this requirement was deleted. 

As the majority and the DOJ points out, search warrants are not 

required for pen register and trap and trace activities under the 

criminal law.35 However, FISA pen register/trap and trace orders 

not only are not based on probable cause, but are not necessarily 

targeted at an individual based on even a lesser showing of involvement in any wrongdoing or any activities that otherwise might legitimately expose him to clandestine surveillance by the FBI. Before section 214, the government had to prove that the target was 

an agent of a foreign power; now, they need only prove that the information is related to a terror or intelligence investigation. This 

extremely broad qualification of a FISA pen register/trap and trace 

order has led many groups to oppose it.36

5. Sec. 215—Access to records and other items under the Foreign Intelligence Surveillance Act (so-called ‘‘Library’’ Provision) 

Section 215 of the PATRIOT Act expanded the FBI’s ability to 

obtain ‘‘any tangible thing’’ under the Foreign Intelligence Surveillance Act. Before the Act, the government could obtain records only 

from hotels/motels, storage facilities and car rental companies, and 

only if they pertain to ‘‘agents of a foreign power.’’ Now, it can seek 

‘‘any tangible thing’’ from any one at all as long as it is relevant 

to investigation. 

Because the statute is so broad, the government could investigate 

consumers’ reading and Internet habits and private records (such 

as credit card information, medical records, and employment histories). The Government will argue that it already had access to 

these sorts of business records in criminal investigations using 

grand jury subpoenas. However, the government’s powers here are 

wholly different because there is no requirement of relevance to 

any criminal activity, as there is with grand jury investigations. A 

federal court found that section 215 implicates new constitutional 

problems: (1) it applies to any tangible thing, and is no longer limVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00461 Fmt 6604 Sfmt 6602 E:\HR\OC\HR174P1.001 HR174P1
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37 ACLU v. Dept. of Justice, 321 F.Supp.2d 24 (D.D.C. 2004) (citing section 215 in its current 

form, and its original form, Pub. L. No. 105–272 (1998)). 

ited merely to business records, and (2) it no longer requires ‘‘specific and articulable facts giving reason to believe that the person 

whom the records pertain is a foreign power or an agent of a foreign power,’’ but only that ‘‘the records concerned are sought for an 

authorized investigation.’’ 37 Thus, Section 215 can be used against 

any person even if the person is NOT suspected of wrongdoing or 

of any connection to a foreign power. Thus, there is virtually no 

limit to what these orders can get, and H.R. 3199 did nothing to 

improve this section. 

We are concerned that these sections can be used to obtain very 

private information on purely innocent people. Whether it is library 

records, medical information or gun purchase records, the government should have access to them only when it can at clearly state 

why it needs them and why the person they pertain to is a terrorist 

or closely related to one. For example, the American Library Association has confirmed that the federal government has gone into a 

library and asked for a list of everyone who checked out a book on 

Osama bin Laden. In the wake of the horrific attack of September 

11, it is obvious that many innocent people may go seeking information on why it happened. This search clearly gathered information on innocent people, who had the right to privacy in their reading habits. As a matter of fact, since 9/11, the American Library 

Association found that libraries have received over 200 formal and 

informal requests for materials, including 49 requests from federal 

officers, although it cannot be confirmed what authority (if any) 

was cited by the federal officers for obtaining this information. 

Importantly, recipients of 215 orders are prohibited from disclosing that they received such an order to anyone but their attorneys. As a result, even though Section 215 allows for library reading habits to be surveilled and other private information to be 

seized, we have absolutely no way of knowing how often this authority has been used. And, recipients of 215 orders have no way 

of denouncing or challenging government overreach or abuse. 

The only amendment on this issue that was accepted was one offered by Mr. Flake, though most of us feel that it is clear that this 

amendment does not solve the problem. Mr. Flake’s amendment 

would allow 215 order recipients to consult their attorneys ‘‘with 

respect to’’ the order, rather than ‘‘in response to.’’ Mr. Flake argues that this change would therefore allow a Section 215 order to 

consult an attorney about challenging the order. However, this 

small cosmetic change does not clearly give Section 215 recipients 

the right to challenge 215 orders. The right to consult an attorney 

does not directly lead to an ability to challenge the order in court, 

and this amendment does nothing to relieve the burden of the review mechanism created by H.R. 3199 or ensure that recipients 

will have enough information to successfully challenge problematic 

215 orders. 

In order to be meaningful, reform of section 215 must directly address its current infirmities. First, the standard for issuing a section 215 order must be reformed to require some individual suspicion that the records related to a spy, terrorist or other foreign 

459

38 ACLU, Surveillance Under the USA PATRIOT Act, available at www.aclu.org/Safeandfree. 39The Amendments were as follows: 

Mr. Nadler offered several amendments. He offered an amendment to limit 215 orders to 

‘‘agents of a foreign power.’’ Mr. Nadler also offered an amendment on the gag order contained 

in Section 215. His amendment would still allow gag orders, but the government would first 

need to show that the gag order is necessary, rather than having gag orders be automatically 

applied to any Section 215 recipient. For example, a gag order could be obtained if the government showed disclosure would endanger someone’s life. Additionally, gag orders, if obtained, 

would have time limit of 180 days, with extensions available for up to 180 days. Mr. Nadler 

offered another amendment to the nondisclosure provision in Section 505. His amendment would 

allow disclosure to one’s attorney or to anyone to whom disclosure is necessary to comply, thus 

making Section 505 have the same nondisclosure provision as Section 215. In addition, the 

amendment limited the nondisclosure period to 90 days. The government may request extensions of up to 180 days if they can show a clear harm would result from disclosure. 

Mr. Schiff offered an amendment to require 215 orders to be made by the Director of the Federal Bureau of Investigation; 

Ms. Jackson Lee offered an amendment to exempt medical records from the 215 authority. 

Mr. Watt and Ms. Waters offered a compromise amendment which would provide for automatic gag orders for Section 215 order recipients but would limit the nondisclosure period to 

180 days. The amendment also allowed the government to btain an extension for up to 180 days 

if it could show the disclosure would result in a clear harm such as endangering someone’s life. 40 Amendment 280 to H.R. 2862, the Science, the Department of State, Justice, and Commerce 

Appropriates Act for Fiscal Year 2006. 41May 13, 2003 Letter at 12 (emphasis in original). 

agent, which may include the records of other (innocent) third parties where those records are clearly relevant to the activities of the 

subject under investigation. Second, a right to challenge must be 

a meaningful one. A meaningful right to challenge cannot be limited to the FISA court itself, which sits only in Washington, DC, 

operates in secret according to highly classified procedures, and ordinarily hears only from the government. The challenge must be 

based not only on whether the order is legal, but should allow for 

challenges on the basis that an order is unreasonable, oppressive, 

seeks privileged information. Finally, the hearing on the challenge 

should not be limited to a one-sided presentation of government attorneys based on secret evidence. 

While a court has not ruled on the ultimate constitutional merits 

on section 215, it may well be found to violate the First Amendment because it (a) places a prior restraint on free speech and (b) 

monitors the free speech activities of its targets, and to violate the 

Fourth Amendment because it fails to provide notice to the target.38 Minority members offered many amendments that would 

have protected the privacy of Americans; all were rejected on party 

line votes.39

On June 15 of this year, however, the House of Representatives 

voted to prevent funds from being spent on any 215 orders that 

would produce library circulation records, patron lists, book sales 

records or book costumer records.40 The Amendment to the SCJSS 

2006 Appropriations bill passed 238–187. 

6. Sec. 218—Foreign intelligence information 

This section says the FBI needs to aver that a ‘‘significant’’ purpose of a FISA order request is to gather foreign intelligence; before the Act, the FBI needed to show that obtaining foreign intelligence was the ‘‘primary purpose’’ of the order. 

The Department has confirmed that ‘‘there was no legal impediment to introducing in a criminal prosecution evidence obtained 

through FISA before the USA PATRIOT Act.’’ 41 Instead, the Department says these barriers resulted from ‘‘certain court decisions 

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42 Id. at 13. 43 In re: Sealed Case No. 02–001, 310 F.3d 717 (F.I.S. Ct. Rev. 2002). 44Kate Martin, ‘‘Why Section 203 and 905 Should be Modified,’’ American Bar Association’s 

Patriot Debates, available at http://www.patriotdebates.com/203–2#opening. 45Oversight answers, submitted by Jamie E. Brown, Acting Assistant Attorney General, May 

13, 2003, on file with the House Judiciary Committee; Oversight answers, submitted by Daniel 

J. Bryant, Assistant Attorney General, July 26, 2002, on file with the House Judiciary Committee. 46Oversight answers, submitted by Jamie E. Brown, Acting Assistant Attorney General, May 

13, 2003, on file with the House Judiciary Committee. 

and administrative practice by the Department.’’ 42 Impediments to 

sharing information between intelligence and law enforcement investigators were, therefore, almost entirely the result of administrative barriers, rather than statutory requirements that were 

eased by the USA PATRIOT Act. This was confirmed by the FISC 

Court of Review.43 Because the Court held that there was no legal 

‘‘wall’’ to begin with, there is no reason to believe that letting this 

section sunset would reimpose the ‘‘wall.’’ 

Again, it is important to note that PATRIOT Act has already created permanent authorization for information sharing between the 

criminal and intelligence agencies: Section 905 requires the Attorney General to provide terror-related information that is uncovered 

in the process of a criminal investigation to the Director of National Intelligence, and section 504 allows FISA information to be 

given to the Criminal Division.44

The Justice Department has provided a small number of anecdotal stories of how FISA obtained evidence helped prosecute 

standard crimes, although it refuses to give a full accounting about 

how this provision has gone above and beyond sharing already allowed under the law.45 The Department also has admitted to sending over 4,500 FISA files to the Criminal Division, although it 

could not account for how many of those resulted in prosecutions.46

The effect of letting the status quo continue is that evidence obtained from a FISA warrant under FISA’s statutory ‘‘probable 

cause’’ standard can be given to non-terror criminal prosecutors 

who are governed by the higher standard of 4th Amendment probable cause. In fact, the lower standard FISA warrant can be sought 

for criminal prosecution purposes, as long as terrorism or national 

intelligence is some small (but ‘‘significant’’) part of the reason 

given. The long-standing policy of not letting criminal prosecutors 

direct intelligence investigations has been vitiated. 

We are aware of at least one significant abuse of this new authority by the Department. The FBI used Section 218 to secretly 

break into Brandon Mayfield’s home, download the contents of four 

computer drives, take DNA evidence and take 355 digital photographs. Though the FBI admits Mr. Mayfield is innocent, they still 

will not divulge the secret court order to him, or allow him to defend himself in court. Given that this search took place after the 

terrorist attack for which Mr. Mayfield was wrongly suspected, and 

not before, it is unclear how the search was for any reason but to 

find evidence incriminating Mr. Mayfield. 

Strikingly, under Section 218, a notice is not provided to the target unless the evidence collected is used at trial. Thus, a target of 

a search may never learn that their house or business was 

searched and that evidence was seized. Furthermore, as seen in the 

Brandon Mayfield case, the government refuses to even let Mr. 

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47Ms. Jackson Lee introduced an amendment to provide notice of a search or surveillance 

under Section 218 if the target is found to be a United States person who is not an agent of 

a foreign power. The amendment would mandate that notification be given no later than 180 

days after it is determined that a U.S. person is not an agent of a foreign power, and this 

amendment covered all forms of surveillance and searches allowed under Section 218. However, 

this reasonable amendment was rejected by the Majority. 48 Id. at 24. 49Mr. Watt introduced an amendment to fix precisely this problem. Mr. Watt’s amendment 

would allow the target of a search warrant to challenge it in the district where it is served, 

or, if the warrant is executed against a corporation, in any district where the corporation is incorporated. This reasonable amendment would ensure that people are able to assert their constitutional rights against unreasonable searches and seizures. However, the majority rejected 

this commonsense approach. 50 Although a leaked ‘‘PATRIOT II’’ bill authored by the Justice Department would have expanded the lone wolf provision to cover U.S. persons as well. 

Mayfield see the order for the search that took place under Section 

218, thus preventing him from being able to defend himself.47

7. Sec. 220—Nationwide service of search warrants for electronic 

evidence 

Section 220 allows a single court to issue a search warrant for 

electronic evidence that is valid nationally. According to the Department’s May 13, 2003 letter, it has used this authority to track 

a fugitive and to track a hacker who stole trade secrets from a company and then extorted money from it.48 Importantly, Section 220 

deals only with ordinary criminal investigations. It is doubtful Congress meant to expand this power to even ordinary criminal investigations in its rush to pass the USA PATRIOT Act. 

The biggest threat is that Section 220 allows law enforcement to 

‘‘forum shop’’ by having a more lenient judge in a different jurisdiction that may have little or no nexus to the actual target issue a 

warrant. Thus, law enforcement officers can game the system to 

ensure they obtain the warrants they want. Furthermore, nationwide search warrants decrease the possibility of judicial review—

a person served with a search warrant in New Jersey, but issued 

by a judge in California, is highly unlikely to travel to California 

to challenge even a facially unconstitutional warrant.49

8. ‘‘Lone Wolves’’ as Agents of a Foreign Power 

Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004 created the so-called ‘‘lone wolf’’ provision of FISA 

redefining the ‘‘agent of a foreign power’’ to include those who ‘‘engage in international terrorism or activities in preparation therefore.’’ In other words, agents of a foreign power no longer need to 

have any connection to a foreign power and instead can be persons 

working alone. This is limited to non-U.S. persons.50 The effect of 

this change is to allow individuals to be targeted and surveilled 

under the FISA powers usually reserved for those who are clearly 

agents of a foreign power. Importantly, the powers used under 

FISA significantly relax many of the protections provided those targeted in criminal investigations. 

The purpose of FISA always has been espionage and terrorism 

surveillance against foreign governments, foreign groups, or individuals associated with such governments or groups. Section 6001 

expanded FISA to include any single person who engages in a violent act that (1) transcends national boundaries and (2) is intended 

to coerce the government or a civilian population. The ‘‘foreign 

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51 USA PATRIOT Act § 213. 52 Charles Doyle, The PATRIOT ACT: A Legal Analysis, CRS, April 15, 2002 at 65. 

agent’’ probably cause that the ‘‘lone wolf’’ provision repealed was 

critical to the constitutionality of FISA surveillance and this 

change threatened to render the FISA statute unconstitutional. Importantly, when this provision passed the House Judiciary Committee in the markup of H.R. 10, it contained a rebuttable presumption that a FISA judge could invoke to approve surveillance 

based on a presumption that the suspect was acting for a foreign 

power, even though there was no evidence the target had ties to 

foreign governments or an international terrorist group. This was 

an important modification to the ‘‘lone wolf’’ power that would have 

given more discretion to the FISA court to use this power when the 

circumstances suggested the suspect was acting for a foreign 

power, but would not have allowed surveillance when it is clear 

there was no foreign power at all. That provision was removed before the bill went to the floor and passed as part of the intelligence 

bill. 

B. SPECIFIC CONCERNS WITH OTHER PROVISIONS OF PATRIOT ACT

Concerns have been expressed with several other provisions of 

the Act. Though a number of germane amendments were offered by 

Democratic Members at the markup, all were rejected by the Majority. 

1. Sec. 213—Authority for delaying notice of the execution of a warrant (so-called ‘‘sneak and peek’’ provision) 

This section permits Federal agents to search a home and indefinitely delay notification of that search to a suspect if a court finds 

‘‘reasonable cause’’ that immediate notification could have an adverse result (also known as ‘‘sneak and peek’’ searches).51 With 

court permission, the government also can use this authority to 

seize property and delay notification to the suspect of that seizure. 

The majority argues that these search warrants were available 

in many circuits before the PATRIOT Act. But as CRS explains, 

section 213 breaks new ground by answering questions the courts 

had not yet confronted: ‘‘The Act extends the delayed notification 

procedure of chapter 121, which operates in an area to which the 

Fourth Amendment is inapplicable, to cases to which the Fourth 

Amendment applies, 18 U.S.C.’’ 52 Before, delayed notice was reserved for (1) exigent circumstances and (2) when notification of a 

search/seizure of stored communications would interfere with an 

investigation, and many courts had yet to rule on the government’s 

contention that delayed notice searches were appropriate in far 

broader circumstances. This latter exception was based on the 

courts’ repeated finding that stored communications did not have 

Fourth Amendment protections, and therefore notice was not required. The problem with section 213 is that it extends this ‘‘investigative interference’’ exception to all criminal activity, where the 

Fourth Amendment is clearly implicated and where many court 

had not yet ruled on the appropriate standards. 

Additionally, two other concerns have been raised: First, the 5th 

and final ‘‘catch-all provision’’ that delayed notification justification 

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53May 13, 2003 Letter at 8. 54 April 4, 2005 Letter. 53May 13, 2003 Letter at 11. 56 97 warrants were used in drug investigations and 38 were used in other criminal investigations. Letter on file with the House Judiciary Committee. 

is necessary because otherwise the investigation will be ‘‘seriously 

jeopardized’’ allows the government to delay notification in almost 

any instance; in fact, in 92 out of 108 cases, this provision was 

used to justify delayed notification. Second, Section 213 as currently written allows law enforcement to indefinitely delay notification. 

In its May 13, 2003 letter to the Committee, the Department indicated that it has used this authority 47 times.53 On April 5, 2005, 

in his testimony before the Senate, the Attorney General upped the 

number to 155. Delays in notification of sneak and peek have been 

for unspecified durations in many cases and as long as 180 days 

in others; in fact, the longest delay has been for 406 days.54 The 

government has sought to delay notification of sneak and peeks 248 

times and every single request has been granted.55

It is important to note that by and large, this provision is not 

being used in terrorism cases. In a July 5, 2005 letter to Rep. 

Bobby Scott, DOJ said Section 213 had been used 153 times as of 

January 31, 2005; only eighteen (11.8%) uses involved terrorism investigations. Thus, nearly 90% of ‘‘sneak and peek’’ warrants were 

used in ordinary criminal investigations.56 We have learned of the 

following additional concerns: 

• Abuse of delayed notice warrants: In April 2005, DOJ said 

90-day delays are common, and that delays in notification have 

lasted for as long as 180 days. The DOJ is getting more strident, as in 2003, the DOJ said its longest delay was 90 days. 

• Abuse of extensions: In May 2003, DOJ reported it had 

asked for 248 delay notification extensions, including multiple 

extension requests for a single warrant, and that the courts 

had granted EVERY SINGLE REQUEST, the longest being 

406 days. 

• Abuse of ‘‘catch-all provision’’: In an April 4, 2005 letter to 

Chairman Sensenbrenner, DOJ reports 92 out of 108 (85%) 

sneak and peek warrants were justified because notification 

would ‘‘seriously jeopardize the investigation’’ and in 28 instances that was the sole ground for delaying notice. 

Significantly, this committee never approved Section 213 and its 

expansive invasions into a person’s privacy. It was slipped into the 

final bill by the Rules Committee, and was never sanctioned by the 

Committee of jurisdiction. Concerns about this authority are widespread; in fact, Rep. Butch Otter successfully offered an amendment to the Commerce-Justice-State appropriations bill, H.R. 2799, 

on the House floor that would have prevented delay of notification 

entirely 

2. Sec. 216—Extension of Trap and Trace/ Pen Register Orders 

Capturing internet and e-mail data is fundamentally different 

than capturing phone data. While the majority argues that this 

section does not capture ‘‘content,’’ there is nothing in this section 

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57 Nancy Chang, The USA PATRIOT Act: What’s So Patriotic About Trampling on the Bill 

of Rights?, Center for Constitutional Rights, November 2001. 58Deborah Sontag, ‘‘Mystery of the Islamic Scholar Who was Barred by the U.S.,’’ New York 

Times, October 6, 2004, A1. 59 Associated Press, ‘‘ACLU Requests Documents on Visas,’’ New York Times, March 17, 2005, 

A20. 

clear whether the Justice Department can capture just 

www.aclu.org, or www.aclu.org/newmember/registration, the latter 

being more than just an address, and clearly indicating the content. There is also concern that as a technical matter, it is impossible to separate out an e-mail address from the content being sent 

either from it or to it.57

3. Section 411, Revocation of Visas 

Section 411 of the PATRIOT Act allows the government to revoke 

visas. It expanded the reasons for inadmissibility to include association with a designated terror group, whether the person actually 

knew that the people or group he was associating were linked to 

terrorism. We are concerned that this section applies retroactively, 

and has been abused against peaceful alien visitors years after 

their so-called association with terrorists: 

For example, Professor Tariq Ramadan’s visa to teach at Notre 

Dame was revoked upon charges that he supported terrorism; 

Notre Dame, Scotland Yard, and Swiss intelligence all agree the 

charges were groundless.58

Similarly, Nicaraguan Professor Dora Maria Tellez was denied 

her visa to teach at Harvard due to her association with the Sandinistas in the 1980s, where she helped to overthrow a brutal dictator whom the U.S. supported.59

4. Sec. 412—Detention of Immigrants 

During the Judiciary Committee’s consideration of the PATRIOT 

Act in 2001, intense negotiations ensued on the issue of detaining 

non-citizens for extended periods of time. The result was Section 

412 of the PATRIOT Act, which set up a system by which the Attorney General could detain any alien he certified as (1) deportable 

or inadmissible on grounds of terrorism, espionage, sabotage or sedition or (2) a danger to national security, as long as he initiated 

removal proceedings or criminal charges within 7 days of detention. 

After initiation of removal or charges, the certified alien could be 

held for up to 6 months at a time. This is a power that we have 

been assured verbally has never been used either by DOJ or by the 

Department of Homeland Security after it was transferred there by 

the Homeland Security Act. We cannot be certain about this, of 

course, because we have not received 6 out of the 7 reports required to detail how and whether Section 412 has been used. 

The authority to hold someone for up to 6 months at a time on 

the word of the Attorney General is an extraordinary power. Congress measured this extraordinary power with the mandatory reporting requirement. However, Attorney General Ashcroft’s Department of Justice was able to circumvent the spirit of the requirement—to report on how many people were being held for long periods without charge—by avoiding use of Section 412 in favor of a 

rule the Attorney General published on September 20, 2001, before 

the PATRIOT Act was enacted. Prior to September 11, 2001, the 

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60 Republican Senator Pat Roberts has authored a bill which seeks to extend the PATRIOT 

Act, and would give the FBI new powers to issue administrative subpoenas in national security 

investigations. However, unlike 505 NSLs, these would be available for any type of record—it 

is not limited to phone, internet, credit or financial records. Instead, it has the breadth of the 

infamous Section 215 request for records, and the lack of judicial oversight of the National Security Letter. This new combination will give the FBI whole new unchecked authority. In fact, as 

written, the ‘‘records’’ subject to seizure are not even limited to businesses. There is nothing in 

the draft legislation that would prevent the FBI to request a private individual to turn over 

documents in his or her possession. A copy of the bill is available at <http://www.eff.org/patriot/

sunset/sunsetlbillldraftl20050517.pdf>. 61 12 U.S.C.A. § 3414(d) (2005). 62 Administrative Subpoenas and National Security Letters in Criminal and Foreign Intelligence Investigations: Background and Proposed Adjustments, CRS, Apr. 15, 2005, at 22. 

INS was required to make charging determinations within 24 

hours of arrest. The rule put in place on September 20, 2001, extended that charging period to 48 hours or ‘‘an additional reasonable period of time’’ in ‘‘emergency or other extraordinary circumstances.’’ It is under this rule that the extended detentions 

without charge outlined in the DOJ Inspector General’s report took 

place. 

Since it has been left not only unused but intentionally circumvented, it is enticing to propose repeal of Section 412. Instead, 

Section 201 of the Civil Liberties Restoration Act leaves Section 

412 of the PATRIOT Act in place. However, for those detained who 

the AG chooses not to certify, DHS would be required to serve a 

Notice to Appear—the charging document that begins an immigration proceeding—on every non-citizen within 48 hours of his arrest 

or detention. Any non-citizen held for more than 48 hours would 

have to be brought before an immigration judge within 72 hours of 

the arrest or detention. The provision recognizes an exemption for 

non-citizens who are ‘‘certified’’ by the Attorney General to have 

engaged in espionage or a terrorist offense, thus preserving PATRIOT Section 412. 

5. Sec. 505—Miscellaneous national security authorities 60—‘‘National Security Letters’’ 

We are concerned with section 505 of the PATRIOT Act, which 

grants law enforcement sweeping authority to issue national security letters (NSLs). National security letters are a form of ‘‘administrative subpoena’’ for personal records which compel the holder of 

the records to turn them over to the government. NSLs grant the 

Justice Department access to telephone and internet records, financial documents, and consumer records without any sort of judicial 

oversight. It is important to note that subsequent legislation redefined ‘‘financial institutions’’ subject to NSLs to include travel agencies, pawn brokers, casinos and car dealers, among other things.61

In fact, it is hard to imagine what type of record wouldn’t be covered under these new definitions. 

It is speculated that DOJ has avoided using Section 215 because 

the NSL’s represent a far more extensive section of the PATRIOT 

Act that is permanently at its disposal. Prior to the PATRIOT Act, 

NSLs could only be used to get records when there was ‘‘reason to 

believe’’ someone was an agent of a foreign power. Now they are 

issued on the standard of relevancy.62

The Justice Department has never accounted for their use. However, in response to a FOIA request, the DOJ released a six page 

list of NSLs delivered as of January 2003. The actual recipients 

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63Doe v. Ashcroft, 334 F.Supp.2d 471, 501 (S.D.N.Y. 2004). 64Mr. Nadler offered an amendment to Section 505, including one to require regular reports 

on its use; one moderating the indefinite gag order on Section 505 requests; and one allowing 

a 505 recipient to challenge the order in court. Ms. Waters offered an amendment to exempt 

medical records from Section 505. 65 18 U.S.C. § 2339A. 

have been redacted, but it confirms that the Justice Department 

has used this new power hundreds of times since the PATRIOT Act 

was signed into law. 

The Justice Department argues that they have already had the 

ability to summon records through (a) administrative subpoenas 

and (b) grand jury subpoenas. And in recent hearings, the director 

of the FBI actually requested more NSL authority. However, NSLs 

are far more intrusive than the Justice Department is representing: First, administrative subpoenas as limited to specific 

categories of cases. Second, grand jury subpoenas can be challenged 

by the judge overseeing the grand jury whereas challenges to NSLs 

require a whole separate action in federal court, an action that is 

highly unlikely as discussed below. 

The Southern District of New York has already struck down the 

telephone and toll NSL statute because it violates the Fourth 

Amendment by completely barring the recipient’s access to the 

courts. The court found that is ‘‘improbable,’’ given the language of 

the NSL, that a reasonable person would think they could not comply or would know that they have a right to contest the NSL.63 The 

court also found the statute violated the First Amendment by placing a prior restraint on speech through the non-disclosure provision.64

6. Sec. 802—Definition of domestic terrorism. 

Section 802 of the USA PATRIOT Act created a category of crime 

called ‘‘domestic terrorism,’’ which makes criminal any activities 

that ‘‘involve acts dangerous to human life that are a violation of 

the criminal laws of the United States’’ when the actor intends to 

‘‘influence the policy of a government by intimidation or coercion.’’ 

Previously, there was no analogous provision in statutory law. The 

overly broad nature of this provision is reason for concern when examined in light of its potential application to and effect on peaceful 

protests. The broad language of section 802 could potentially be 

used to punish participants of such peaceful demonstrations as a 

Greenpeace rally or the Million Man March, both of which fall 

squarely within the First Amendment, but which could also be the 

scene of an accidental injury and subsequent prosecution under 

this provision. 

7. Sec. 805—Material support for terrorism 

Section 805 of the Act makes it a federal crime to provide material support for terrorist activities. In general, ‘‘material support’’ 

is defined as financial resources, expert advice or assistance, assets, housing, personnel, training, or communications equipment.65

Section 805 added the terms ‘‘expert advice and assistance’’ to this 

list. This provision raises numerous, serious concerns. 

The material support statute has repeatedly been found to be unconstitutional. On December 3, 2003, the U.S. Court of Appeals for 

the Ninth Circuit ruled that the portions of the law prohibiting 

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66 Humanitarian Law Project v. Ashcrft, 352 F.3d 382 (9th Cir. 2003). 67 Humanitarian Law Project v. Ashcroft, 309F.Supp.2d 1185 (C.D. Cal. 2004). 68The court refused to find the prohibition to be overbroad and thus declined to enjoin its 

enforcement entirely. 69Opinion and order re: USA v. Sattar, al-Sirri, Steward and Yousry (J.G. Koeltl, 

02CR00395). 70 Id, at p. 18. 

‘‘personnel’’ and ‘‘training’’ from being provided were void for 

vagueness.66 This is because the term ‘‘personnel’’ could criminalize 

persons who merely write or publish pamphlets for a designated 

foreign terrorist organization; similarly, the term ‘‘training’’ could 

criminalize a person who instructs a foreign terrorist organization 

on how to petition the United Nations. 

The specific amendment added by Section 805 was enjoined in a 

limited case by a lower court for similar reasons. In 2004, the U.S. 

District Court for the Central District of California held that the 

prohibition on providing ‘‘expert advice and assistance’’ was vague 

because it could encompass the plaintiff’s provision of medical and 

legal advice to a terrorist organization.67 The court enjoined the 

government from enforcing this provision against the plaintiffs.68

In July of 2003, a federal District Court judge in New York 

threw out charges of material support for terrorism against lawyer 

Lynne Stewart who was charged with funneling messages from her 

imprisoned client, Sheik Omar Abdel Rahman.69 She was charged 

with violating the prohibition against providing communications 

equipment and personnel. Judge Koeltl ruled the law was unconstitutionally vague, especially the personnel provision, such that Ms. 

Stewart could not have known what was prohibited. Furthermore, 

he held ‘‘the government fails to explain how a lawyer, acting as 

an agent of [an alleged foreign terrorist] client. * * * could avoid 

being subject to criminal prosecution as a ‘quasi-employee.’ ’’ 70

Finally, in June 2004, a federal jury in Idaho acquitted University of Idaho graduate student Sami Al-Hussayen of all charges of 

material support. The government charged Al-Hussayen, a citizen 

of Saudi Arabia, of providing material support for his operating 

and maintaining Internet sites for the Islamic Assembly of North 

America and for funneling donations to the group. Importantly, 

this group was not on the list of terrorist groups, and the links AlHyssayen posted were also available on the government’s own 

website. Significantly, in each instance, the courts found COMPLETELY LEGAL ACTIVITIES would violate Section 805. 

C. GENERAL CONCERNS WITH PATRIOT ACT REAUTHORIZATION

Beyond the specific concerns outlined above, we are also concerned with the Committee’s general failure to provide a general 

sunset provision, or to provide for any sort of additional general 

oversight power by the Congress with respect to the Justice Department regarding the PATRIOT Act. 

1. Lack of a General Sunset 

If we have learned one thing over the last four years, it is that 

the Justice Department feels it is above accountability to this Congress in relation to the so called ‘‘war on terror,’’ and that we, its 

Committee of jurisdiction, will not get answers to our questions unless the Justice Department is compelled to come before us and jusVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00471 Fmt 6604 Sfmt 6602 E:\HR\OC\HR174P1.001 HR174P1
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tify its use of the more dangerous provisions of the PATRIOT Act. 

However, our reasonable attempts to retain our oversight through 

periodic sunsets were thwarted completely on party-line votes: 

• Mr. Scott and Mr. Nadler offered second degree amendments that would have put a four year and six year sunset on 

Section 206, the John Doe Roving Wiretap, and Section 215, 

Intelligence orders for any tangible thing, respectively They 

were rejected in favor of a ten-year amendment that is so far 

in the future, its review will be almost meaningless. 

• Mr. Schiff offered an amendment to sunset the Lone Wolf 

provision, which was originally passed in the Intelligence Reform bill only 8 months ago. We believe making this provision 

permanent so soon and without any information on its use is 

unwise and we therefore supported Mr. Schiff’s proposal to review this broad new provision in three years. This too was rejected in favor of permanency.

• Mr. Nadler and Ms. Lofgren, in the spirit of comity, offered 

an amendment to set all of the expiring provisions on a ten 

year sunset cycle. It was flatly rejected by the majority. 

Considering that many of the Majority’s members spoke in favor 

of sunsets throughout our 12 hearings, we were disappointed that 

they were swayed into objecting to even the most reasonable of 

amendments. That all of these new powers have been made largely 

permanent contributed to our collective decision not to support this 

bill. 

2. Lack of General Oversight

In addition, there is a need for additional congressional oversight 

of the PATRIOT Act. There are numerous reporting requirements 

under the Electronic Communications Privacy Act, the Foreign Intelligence Surveillance Act and National Security Letters. However, 

many of those are classified, and therefore cannot even be publicly 

discussed. These classified accounts effectively protect the Administration from having to answer for the use of the authorities in any 

way that they can be held accountable for—and they have been exploited by the Majority to at once claim that we have oversight capabilities, yet no abuses are known. 

Moreover, the Administration claims that any public accounting 

would put our nation at risk of further terror attacks. However, we 

have heard no logical arguments about why simply reporting the 

number of times an authority has been used puts anyone at risk. 

Knowing that John Doe Roving Wiretaps have been used 49 times, 

for example, does nothing to further terrorist causes. Knowing that 

nearly 90 percent of ‘‘sneak and peek’’ warrants were used in nonterrorist cases does not put us at risk of another attack. 

Besides, this argument is completely undercut by the Administration’s selective declassification of numbers and examples when 

it is politically convenient for it to do so. We have asked for numbers and examples for years and have been repeatedly told that the 

information was classified. Then, in April of this year, when it became clear that many members of this House and in the Senate 

would not be acquiesced by hollow reassurance, numbers and anecdotes suddenly became available. 

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71For example, Mr. Berman offered an amendment that would have required reporting on 

data-mining practices, which to date, this Congress only finds out about through news reports 

after personal information is leaked or otherwise abused. He withdrew that amendment after 

it became clear it would not pass. Mr. Conyers offered an amendment that would have required 

reporting on the disclosure of electronic communications, a reporting requirement that was reporting on the disclosure of electronic communications, included in the Judiciary passed bill in 

2001 and supported unanimously, but was later stripped by the Rules Committee without explanation. Mr. Conyers’ amendment failed. Similarly, Mr. Schiff offered an amendment that would 

have required public reporting on the use of National Security Letters and the Sneak and Peek 

authority, two provisions that the Justice Department has been secretive about. That amendment failed on party lines as well. 

However, anecdotes are not oversight. Non-terror examples of 

how a provision has been used has no bearing on whether they 

should be renewed, and as this bill has it, renewed as-is and without any new protections. We are sure the Justice Department can 

find one or two feel-good stories for each provision of the U.S. code, 

but that is not the point. Oversight is about deciding whether, on 

the whole and after examining the totality of the circumstances, a 

provision’s usefulness outweighs the privacy and other rights it infringes upon. Regrettably, the Justice Department has not given us 

enough information to make that determination. 

In addition, we find it hard to believe that the number of times 

a section of the PATRIOT Act has been used suddenly became no 

longer a security threat earlier this year without any change in the 

law or our standing in the fight against terror. Clearly, these provisions were wrongly classified from the beginning if they could be 

released for political reasons in the Administration’s efforts to reauthorize the PATRIOT Act. This sort of bad faith on the Administration’s part clearly calls for statutorily mandated reporting requirements. 

H.R. 3199 also does nothing to address the myriad of concerns 

related to the unwarranted amount of secrecy that surrounds the 

original PATRIOT Act. The PATRIOT Act keeps secret, even from 

Congress, how many of the powers are being used, prohibits recipients of search orders from disclosing they even received such an 

order, including to their attorney, and allows the government to secretly search people’s homes and seize their property. The Minority 

attempted to remedy many of these egregious secrecy provisions, 

but was thwarted in all of its attempts to provide reasonable measures to allow for more light to be shed on the government’s actions.71

The PATRIOT Act allows the government to keep secret, even 

from Congress, how many of these authorities are being used. 

While there are reporting requirements the Department of Justice 

must adhere to, as discussed in more detail above, they have on 

numerous occasions either refused to provide they necessary information or have given the Congress only useless information. For 

example, it was only after a FOIA request by the ACLU was 

upheld that the DOJ released any information about its use of Section 505 National Security Letters. However, what the DOJ released was a six-page document with every single line blacked out. 

Thus, while we know the DOJ is using this authority often, that 

is all we know, and further attempts to gain information have been 

thwarted. Similar refusals to provide even descriptive statistics on 

the use of many provisions are, unfortunately, quite common. 

470

72Steven Fainaru & Margot Williams, Material Witness Law has Many in Limbo; Nearly Half 

Held in War on Terror Haven’t Testified, WASH POST, Nov. 24, 2002, at A1. 73May 13 Letter at 50. 

As an additional safeguard, Ms. Lofgren introduced an amendment which would ensure that a person’s right to challenge their 

detention is not undermined by any Act of Congress. Her amendment specified that no Act of Congress passed since 9/11, including 

the PATRIOT Act, shall be construed to suspend the right to apply 

for a writ of habeas corpus. It would simply have protected a right 

that was deemed so important that is was included in the U.S. 

Constitution. However, after initially passing on a voice vote, the 

Majority moved to reconsider, and the amendment was overturned 

on a straight party-line vote. 

IV. THE LEGISLATION DOES NOTHING TO ADDRESS THE MANY UNILATERAL ABUSES OF THE ADMINISTRATION IN THE WAR AGAINST

TERROR

Since we were given the ability to review the PATRIOT Act, we 

feel it also provided an opportunity to review all of the U.S.’s actions in the broader War on Terror as it is impossible to discuss 

the PATRIOT Act without referencing other administrative actions 

that have occurred since 9/11. 

Unfortunately, the majority flatly rejected our attempts to review 

other actions by the United States government, including unilateral actions that were taken so as to circumvent even small protections that existed in the USA PATRIOT Act. It is clear that numerous abuses have occurred and we fear the majority’s unwillingness 

to address them will only lead to further abuses in the years to 

come. 

A. MATERIAL WITNESS STATUTE

An undisclosed number of the individuals detained after September 11, 2001, have been arrested on material witness warrants 

pursuant to the Department’s authority under 18 U.S.C. § 3144. Although the Department refuses to reveal the exact number of individuals who have been held as such witnesses, a November 2002 

Washington Post article identified 44 material witnesses and asserts that almost half of them never testified before a grand jury.72

In its May 13 letter to the Committee, the Department put the 

number of material witnesses detained as of January 2003 in conjunction with September 11 to be fewer than 50.73 The Justice Department has subsequently refused to update that number. 

The Department has refused to provide any further information 

on those being held as material witnesses, claiming that it cannot 

do so because of the grand jury secrecy rules and sealing orders 

that have been entered by the courts, and has refused to release 

the orders themselves. Press reports, however, indicate that many 

individuals have been held as material witnesses for significant periods of time prior to testifying before grand juries, if they testified 

at all. 

This implies the government is using the material witness statute not to secure testimony, but to secure the detention of individuals it cannot connect with terrorism or other crimes. It appears 

471

74See, e.g., United States v. Awadallah, 2002 U.S. Dist. LEXIS 1430, 01 CR 1026 (SAS), at 

*96–97 (S.D.N.Y. Jan. 31, 2002). 75 Jerry Seper, Israel Bars Entry to Men INS Cleared, WASH. TIMES, Apr. 1, 2002; Chuck 

Raasch, Virginia City is Newest Front in Terror War, INDIANAPOLIS STAR, Mar. 31, 2002. 

the department is holding detainees despite the fact it could secure 

their testimony by deposition, which the statute provides for.74 It 

also appears from news articles that at least two individuals, Mohammed El-Yacoubi and Abdulmuhssin El-Yacoubi, were held as 

material witnesses in connection with a grand jury investigation in 

which they were the targets of the investigation.75

The Inspector General has agree to investigate how the statute 

was wrongly applied to Brandon Mayfield, arrested for bombing a 

train in Madrid, and what role his Muslim faith played in the FBI’s 

decision to hold him as a material witness. 

The material witness statue was scheduled to be part of a bipartisan oversight plan crafted in September of 2003. After several 

months of effort, committee staff were unable to convince their Republican counterparts that action was necessary. While we had 

drafted an extensive bipartisan letter inquiring about all the policies and statistics about the use of this statute, just before delivery 

the majority refused to sign the letter and claimed it was no longer 

concerned about the statute because the warrants were signed by 

a judge and therefore couldn’t possibly be abused. 

B. TORTURE

We now know that the Justice Department led the effort to legally excuse acts of torture. The abuse of Iraqi and other prisoners 

was not just the work of a few rogue soldiers, but the obvious consequence of the Justice Department declaring that the President 

and his military are accountable to no one. A number of legal opinions generated by the Justice Department were either leaked or 

formally released by the President last year. They include: 

• January 22, 2002 Department of Justice memorandum regarding ‘‘Application of Treaties and Laws to al Qaeda and 

Taliban Detainees’’ 

• February 1, 2002 Attorney General Letter to President regarding status of Taliban detainees; 

• February 7, 2002 Department of Justice memorandum regarding ‘‘Status of Taliban forces Under Article 4 of the Third 

Geneva Convention of 1949’’

• February 26, 2002 Department of Justice memorandum regarding ‘‘Potential Legal Constraints applicable to Interrogations of Persons Captured by U.S. Armed Forces in Afghanistan’’ • August 1, 2002 Department of Justice letter regarding application of Convention Against Torture and Rome Statute on 

the International Criminal Court • August 1, 2002 Department of Justice memorandum regarding ‘‘Standards of Conduct for Interrogation under 18 

U.S.C. §§ 2340–2340A.’’ 

In tandem, these documents argued that (1) the Geneva Conventions and other international laws banning torture did not apply to 

our detainees, (2) if they did, they could be construed so narrowly 

that events such as those at Abu Ghraib are not legally ‘‘torture,’’ 

472

76The new memo is available at http://www.usdoj.gov/olc/dagmemo.pdf. 77 U.S. v. Passaro, No. 94–CR–211–1, (E.D.N.C.), indictment available at http://

news.findlaw.com/cnn/doc/torture/uspassargo61704ind.html. 78 Richard B. Schmitt, U.S. May Still Charge ‘‘Enemy Combatant, Gonzales Says, L.A. Times, 

Mar. 8, 2005. 79Military Extraterritorial Jurisdiction Act, Pub. L. No. 106–523 (Nov. 22, 2000). 80Douglas, Jehl, Pentagon Will Not Try 17 G.I.’s Implicated in Prisoners’ Deaths, NY Times, 

Mar. 26, 2005. 81 Current law allows for an expedited removal of foreign nationals on ‘‘security and related 

grounds,’’ for (A) generally subversive activity, (B) terrorist activity or (C) generally threatening 

foreign policy (8 U.S.C. § 1182(a)(3)). On a finding of one of the above three grounds by an immigration court, the Attorney General reviews the decision. If he approves and finds that ‘‘disclosure of the information would be prejudicial to the public interest, safety or security,’’ he can 

order immediate removal without hearing or inquiry (8 U.S.C. § 1225(c)). The Attorney General 

is empowered to disregard such a request only in narrowly defined, technical circumstances. 8 

U.S.C. § 1231(b)(2)(C) provides that the Attorney General may deny an alien deportation to a 

designated country if he finds: (i) that the alien failed to designate a country promptly, (ii) that 

and (3) even if those acts could be defined as ‘‘torture,’’ the Administration and its military are not liable under the President’s Commander-in-chief authority and other defenses. On December 30, 

2004, the Justice Department released a new memo that improved 

upon its previous rulings: it redefined what ‘‘torture’’ was under the 

law to no longer require excruciating and agonizing pain equivalent 

to organ failure or death, and reversed its previous position that 

those committing torture could be shielded from criminal liability 

by good intentions.76 It did not however, explicitly revoke the previous memos’ holding that the President’s Commander-in-chief authority was not bound by any American or international law. 

It is within the Justice Department’s discretion whether to prosecute contractors who are implicated in the scandal, and to date, 

has indicted one person for criminal assault for killing a detainee 

within his custody.77 And while ‘‘the Justice Department has received a number of criminal referrals involving allegations of prisoner mistreatment by CIA operatives,’’ it has not brought any 

charges.78 Finally, the Justice Department does have the authority 

to charge members of the military for their criminal acts over seas 

if either (a) they are no longer in the military, or (b) committed the 

acts with non-military accomplices.79 This authority may be appropriate to exercise in the instances where the military is refusing to 

charge its members even in contradiction with the recommendations of its own investigators. For example, 17 soldiers were recently found to be responsible for the death of three detainees, yet 

their commanders will not press charges; only one was discharged 

and one was given a letter of reprimand.80

C. RENDITION

Maher Arar, was detained by the INS during a layover at JFK 

airport in New York. After authorities were unable to obtain any 

intelligence from Arar or establish a connection between him and 

Al Qaeda, Deputy Attorney General Larry Thompson ordered him 

deported to Syria—despite his professed Canadian citizenship and 

his request to return to Canada. Arar was jailed and tortured in 

Syria for ten months before his release in October 2003. No one 

was ever able to connect him in any way to terrorism or to Al 

Qaeda. 

Even if Arar was correctly labeled a threat to national security, 

he was free to request deportation to Canada, and was entitled to 

be sent somewhere he would not be harmed.81 The Attorney GenVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00476 Fmt 6604 Sfmt 6602 E:\HR\OC\HR174P1.001 HR174P1
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the designated country fails to respond to a deportation request within thirty days, (iii) that the 

designated country is not willing to accept the alien, or, (iv) that removal to the designated 

country is prejudicial to the United States. 82 8 U.S.C. § 1231(d)(2)(D) (If the Attorney General does not deport an alien to the country 

of his choice, the alien is to be returned to a nation is which he is a national or citizen, given 

the nation accepts). 83 8 U.S.C. § 1231(b)(2)(E)(vii). 84 International Convention Against Torture, and Other Cruel, Inhuman, or Degrading Treatment or Punishment, art. 3. 85 8 C.F.R. § 235.8. See also, Pub. L. 105–277, Div. G, Title XXII, Section 2242. There are exceptions to the policy (8 U.S.C. § 1231(b)(3)(B)) but the Justice Department would have had to 

demonstrate reasonable grounds to believe Arar is a credible danger to national security. 86 County Reports on Human Rights Practices, 2002, available at: http://www.stage.gov.

87 CIA Flying Suspects to Torture?, CBSNews.com, Mar. 6, 2005. 88 Jane Mayer, Outsourcing Torture, The New Yorker, Feb. 8, 2005. 

eral’s Office argues that removing Arar to Canada would have been 

prejudicial to national security, and that it was justified in returning Arar to Syria under the prevailing statute.82 However, even if 

the Attorney General had found reason to deny Arar deportation 

to Canada, he might have sent him to any country in the world. 

The law provides that if all other statutorily defined options are inappropriate, the Justice Department may send an alien to any 

country willing to receive him.83 There may have been a tactical 

advantage in turning Arar over to the Syrian government, but 

there was no legal requirement to do so. 

Deportation to Syria when imprisonment and torture are imminent stands in violation of both U.S. and international law. The 

International Convention Against Torture prohibits the removal of 

a person to another state ‘‘where there are substantial grounds for 

believing that he would be in danger of being subjected to torture.’’ 84 Federal law affirms the convention and condemns extradition to a country in which ‘‘there are substantial grounds for believing the person would be in danger of being subjected to torture.’’ 85 The State Department recognizes the Syrian government’s 

use of torture tactics—including electrical shock, removal of fingernails, and objects forced into the rectum.86

Arar’s case is not unique. Estimates puts the number of renditions at over a hundred, although their secrecy prevents us from 

knowing the extent of their use. The Administration keeps saying 

it does not use torture and does not render suspects, yet lay employees admit that it was a common place activity. Until three 

months ago, Michael Scheuer was a senior intelligence analyst for 

the CIA; he has now come forward to explain that,

They don’t have the same legal system we have. But we 

know that going into it * * * And so the idea that we’re 

gonna suddenly throw our hands up like Claude Raines in 

‘‘Casablanca’’ and say, ‘‘I’m shocked that justice in Egypt 

isn’t like it is in Milwaukee,’’ there’s a certain disingenuousness to that.87

A former Justice Department lawyer even admits that, ‘‘The Convention only applies when you know a suspect is more likely than 

not to be tortured, but what if you kind of know? That’s not 

enough. So there are ways to get around it.’’ 88 In fact, the Convention says nothing about a legal standard of ‘‘more likely than 

not’’—the correct standard is ‘‘substantial grounds.’’ The ‘‘more likely than not’’ standard is a highly constrained interpretation of the 

Convention that obviously fails to honor its spirit (and appears inVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00477 Fmt 6604 Sfmt 6602 E:\HR\OC\HR174P1.001 HR174P1
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89 Id. 90 28 U.S.C. §§ 511–513 (2004). 91See supra, discussion of memo advising the Administration on the laws of war. 92 International Committee of the Red Cross, ‘‘Commentary: IV Geneva Convention Relative 

to the Protection of Civilian Person in Time of War,’’ (Geneva, 1958). 93See letter from Congressman John Conyers, Jr. to The Honorable Gordon R. England, regarding the legality of detention of Guantanamo, November 9, 2004, on file with the House Judiciary Committee Democratic Staff. 96 Abdah v. Bush, 2005, WL 711814 (D.D.C. Mar. 29, 2005). 97 Abdah v. Bush, 2005, WL 589812 (D.D.C. Mar. 12, 2005). 94 In re Guantanamo Cases, 355 F.Supp.2d 443 (D.D.C.) (finding that the deck was so stacked 

against the detainees that the hearings were near meaningless). 

tended to do just that). And a recently retired FBI agent has said, 

‘‘They loved that these guys would just disappear off the books, and 

never be heard of again * * * They were proud of it.’’ 89

D. ENEMY COMBATANTS

The Justice Department is authorized to give legal advice in response to a request from the President, federal agencies, and military departments.90 Under this authority, the Justice Department 

laid the legal grounds for the indefinite and illegal detention of 

enemy combatants by advising that al Qaeda and Taliban forces 

were not entitled to protection under the Geneva Conventions. The 

Department also determined that individuals arrested in the 

United States both citizens and non-citizens, were not entitled to 

the protection of the sixth amendment and if certified as enemy 

combatants, could be held by the military incommunicado without 

access to lawyers or the court for so long as the government 

deemed it necessary. Instead of meeting the procedures required 

under the Constitution and our international agreements, the Administration has constructed a farce of process and fairness. 

Most importantly, the Office of Legal Counsel has advised that 

these detainees fall somewhere between civilians and soldiers and 

therefore are devoid of the protections that apply to either.91 This 

is in clear conflict with 50 years of legal precedent that has held 

that a person ‘‘cannot fall outside of the law.’’ 92 Instead of simply 

holding individualized hearings about whether each detainee is a 

prisoner of war or just a ‘‘protected person’’—as required by the Geneva Conventions—and then providing the appropriate judicial procedures, the Defense Department now holds newly imagined Combatant Status Review Tribunals (CSRT) and Annual Review Board 

procedures that don’t meet the international obligations for the 

treatment of either group.93

A federal court has recently ruled that at least one of these procedures—the CSRT—violates the detainees’ Fifth Amendment 

rights to due process.94 The court found particularly troubling that 

the detainee Another federal court has found that the military commissions are also in violation of the law, because they do not meet 

Geneva Convention requirements.95 It held that until the detainees 

are adjudicated either POW’s or protected persons, they must be afforded the rights under the Afraid that Administration will deport 

more of these detainees to countries where they may be tortured, 

attorneys have secured a preliminary injunction keeping the government from removing Guantanamo detainees without giving the 

detainee’s attorney at least 30-day notice of its intent to release or 

transfer the detainee.96 This is in light of the fact that 200 detainVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00478 Fmt 6604 Sfmt 6602 E:\HR\OC\HR174P1.001 HR174P1
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95 Hamdan v. Rumsfeld, 355 F.Supp.2d 152 (D.D.C. 2004). 98 Justice Department’s Project to Interview Aliens After September 11, 2001, GAO, GAO–03–

459, April 2003 at 6. 99Ken Ritter, Associated Press, In Vegas Matching Airline, Hotel Records with Terror Lists, 

AP Dec. 31, 2003. 100 Id. 101 Ron Smith, Sources: FBI Gathered Visitor Information Only In Las Vegas, Las Vegas Review-Journal, Jan. 7. 2004, at 1A. 

ees have already been transferred overseas, 65 of whom on the condition that they be further detained by the country of receipt.97

E. SELECTIVE ENFORCEMENT OF IMMIGRATION PROVISIONS/RACIAL

PROFILING

The Justice Department’s racial profiling guidelines exempt terrorism investigations from the general ban on the use of these tactics. While the Department widely used racial profiling—the interview program of middle eastern men who came into the country before 9/11, the interview of 50,000 Iraqis, the FBIs counting of 

mosques and Muslims, and the registration of over 83,000 middle 

eastern men under NSEERS—we have received no useful intelligence information and have prosecuted only a handful of people 

for terrorism related charges. In fact, the GAO found that the information gathered from such programs sits around in federal databases without any specific plans for use.98 This has led to former 

Attorney General John Ashcroft to admit that racial profiling 

doesn’t work. During a press conference, he admitted that al Qaeda 

is using Europeans, Africans and South Asians. In fact, they recruit from ‘‘any nationality inside target countries.’’ However, the 

Department continues to profile and selectively enforce laws on the 

basis of race, nationality and religion. 

F. EXCESSIVE COLLECTION OF PERSONAL DATA

Since the passage of the PATRIOT Act, the press has reported 

massive FBI collections of personal information about individuals 

suspected of no wrongdoing. It is unclear what precise authority 

the FBI relied upon to collect this data, or the extent to which investigative powers granted by the PATRIOT Act were used by the 

bureau to amass this information. 

For example, in December 2003, the press reported that ‘‘[t]he 

FBI has been checking hotel and airline records against terrorist 

watch lists in advance of a New Year’s Eve celebration expected to 

draw 300,000 to Las Vegas.’’ 99 Though FBI conceded the personal 

records had not borne out a particular threat, a FBI spokesman 

was quoted as saying, ‘‘[t]he information we’re getting, the names, 

are being run by all the different watch lists[.] People can take 

comfort that anything and everything that can be done is being 

done.’’ 100 An article in the Las Vegas Review-Journal suggests that 

the information may have been collected pursuant to Section 505 

of the PATRIOT Act: ‘‘[c]asino operators said they turned over the 

names and other guest information on an estimated 270,000 visitors after a meeting with FBI officials and after receiving national 

security letters requiring them to yield the information.’’101

Likewise, last spring the New York Times reported that ‘‘[i]n the 

days after the Sept. 11 terrorist attacks in 2001, the nation’s largest airlines, including American, United and Northwest, turned 

476

102 John Schwartz and Micheline Maynard, Airlines Gave FBI Million of Records on Travelers 

After 9/11, NY Times, May 1, 2004 at A10. 103 Id. 104See Hardy Declaration; Leslie Miller, FBI Keeping Records on Pre-9/11 Travelers, AP, Jan. 

15, 2005. 105Memorandum from Attorney General John Ashcroft to United States Attorneys entitled 

‘‘Anti-Terrorism Plan’’ (September 17, 2001). 106Office of the Inspector General, Department of Justice, the September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11, Attacks 34–39 (April 2003) (emphasis added). 107 Id. at 1. 

over millions of passenger records to the Federal Bureau of 

Investigation[.]’’ 102 An FBI official told the newspaper that the 

agency requested the data ‘‘under the bureau’s general legal authority to investigate crimes and that the requests were accompanied by subpoena, not because that was required by law or because the bureau expected resistance from the airlines, but as a 

‘course of business’ to ensure that all proper procedures were followed.’’ 103 The Electronic Privacy Information Center later learned 

through its Freedom of Information Act litigation that the FBI in 

fact collected 257.5 million passenger records, and has since incorporated them into its permanent investigative databases.104 It is 

unclear whether authorities granted by the PATRIOT Act enabled 

the FBI to collect this vast amount of information, and if so, which 

provisions. 

G. UNAUTHORIZED DETENTION OF ALIENS

Following the terrorist attacks in New York City and Washington, D.C., the Attorney General directed the FBI and other 

members of federal law enforcement to utilize ‘‘every available law 

enforcement tool’’ to arrest persons who ‘‘participate in, or lend 

support to, terrorist activities.’’ 105 But in so doing, the FBI took advantage of our nation’s immigration laws by detaining aliens for extended periods of time without any real authority and committing 

abuses to those same aliens during their detainment. 

The ‘‘hold until cleared’’ policy that Department of Justice 

(‘‘DOJ’’) officials communicated to the Immigration and Naturalization Services (‘‘INS’’) and FBI applied to all of the ‘‘September 11 

detainees’’ who the FBI categorized as either being ‘‘of interest,’’ ‘‘of 

high interest,’’ or ‘‘of undetermined interest.’’ In a September 27, 

2001 e-mail, DOJ Senior Counsel observed that while those individuals found to be legally present in the United States may only be 

held so long as law enforcement was pursuing criminal charges or 

a material witness warrant against them, any others ‘‘believed to 

be involved in the attacks * * * may be detained, at least temporarily, on immigration charges.’’ 106 In all, more than 1,200 citizens 

and aliens nationwide were detained pursuant to this policy within 

two months of the attacks, and that number may even be substantially higher given that a senior official in the Department’s Office 

of Public Affairs stopped reporting the cumulative totals based on 

the belief that the ‘‘statistics were becoming too confusing.’’ 107

What’s more, during this detainment period, these individuals 

were not informed of the charges against them for extended periods 

of time; were not permitted contact with attorneys, their families 

and embassy officials; remained in detention despite having no involvement in terrorism; and were physically or verbally abused or 

477

108Office of Inspector General, U.S. Dep’t. of Justice, Supplemental Report on September 11 

Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn New York 46 

(Dec. 2003). 109 Id. at 46–47. 110 Id. at 31–33. 111The four sets of guidelines that were revised include: 

Continued

mistreated in other ways. This included officers who ‘‘slammed detainees against the wall, twisted their arms and hands in painful 

ways, stepped on their leg restraint chains, and punished them by 

keeping them restrained for long periods of time,’’ 108 all of which 

was captured on videotape. Despite being seen on videotape, these 

officers denied any involvement upon Inspector General inquiry.109

Finally, even when officials permitted detainees to meet with counsel, the Office of Inspector General found that several officers illegally recorded these meetings in clear violation of the Fourth and 

Sixth Amendments.110

H. CLOSED IMMIGRATION TRIALS

Ten days after the 9/11 attack on the United States, the Attorney 

General implemented new procedures for handling immigration 

cases involving aliens linked to the government’s ongoing investigation of the September 11th attacks and other terrorist activity 

against the United States. These immigration matters were identified as ‘‘Special Interest Cases.’’ In conjunction with that effort, the 

Chief Immigration Judge instructed immigration judges and court 

administrators to close to the public hearings involving Special Interest Cases, and to bar access to the related administrative record 

and docket information. These instructions were justified as part of 

the effort to protect national security and public safety by preventing sophisticated terrorist organizations like Al Qaeda from 

learning about the government’s ongoing terrorism investigation. 

On May 28, 2002, the Department published an interim regulation that provided a mechanism for the government to ask an immigration judge to place a protective order over information that, 

while not classified, was sensitive and could damage law enforcement or national security interests if released beyond the parties 

to a specific immigration proceeding. If a protective order is granted, the alien, counsel, and anyone else approved by the government, are given full access to the protected information, but they 

are not permitted to disclose the information to others. The alien 

may challenge the admissibility of the evidence and may appeal the 

granting of the protective order as part of an appeal to the Board 

from the immigration judge’s decision. The public may attend all 

portions of the alien’s hearing, except those parts where the protected information is discussed. A violation of the protective order 

could render the alien ineligible for discretionary relief and could 

subject the alien’s attorney to disciplinary procedures. 

I. THE ATTORNEY GENERAL’S GUIDELINES ON DOMESTIC

SURVEILLANCE

On May 30, 2002, Attorney General Ashcroft announced revisions to four sets of internal guidelines that govern how the FBI 

conducts its investigations.111 The Attorney General undertook his 

478

I. The Attorney General’s Guidelines on General Crimes, Racketeering Enterprise and Terrorism Investigations: 

II. The Attorney General’s Guidelines Regarding the Use of Confidential Informants; 

III. The Attorney General’s Guidelines on Federal Bureau of Investigation Undercover Operations; and 

IV. The Memorandum for the Heads and Inspectors General of Executive Departments and 

Agencies: Procedure for Lawful, Warrantless Monitoring of Verbal Conversations. 

The charges undertaken by Attorney General Ashcroft begin with the change in the guidelines 

title to the FBI Guidelines on General Crimes Racketeering Enterprises and Terrorism Enterprises. Moreover, the Attorney General also ‘‘reportedly’’ change the central role of the FBI by 

stating, ‘‘[t]he highest priority is to protect the security of the nation and the safety of the American people against the depredations of terrorists and foreign aggressors.’’ He tried to emphasize 

this change by drafting a new introduction to the guidelines that states that there are ‘‘a number of changes designed to * * * facilitate the FBI’s central mission of preventing the commission of terrorist acts against the United States and its people.’’ 112 In an attempt to address some civil liberties concerns, the Attorney General included language in this section that prohibited FBI agents from conducting online searches using the 

names of individuals, except when incidental to topical research such as authors or parties to 

cases. The guidelines further state that, ‘‘[t]he law enforcement activities authorized in this part 

do not include maintaining files on individuals solely for the purpose of monitoring activities 

protected by the First Amendment or the lawful exercise of any other rights secured by the Constitution or laws of the United States.’’

efforts without the benefit of congressional input, citing the need 

to strengthen the ability of FBI agents in the field to detect and 

prevent future acts of terrorism. Critics of the revisions, however, 

believe they will do little, if anything, to improve the FBI’s ability 

to combat terrorism. Indeed, many believe that the revisions will 

do nothing more than invite the FBI to engage in the type of 

abuses that precipitated the issuance of the guidelines in the first 

place. 

The new guidelines give the FBI much broader authority to investigate potential terrorist enterprises. In addition to extending 

time parameters and devolving authority to the SACs, the guidelines allow investigations to be conducted with no annual review 

and when no evidence of criminal activity is present. 

The most drastic changes undertaken by Attorney General 

Ashcroft are outlined in Section VI (see, ‘‘Counter Terrorism Activities and other Authorizations’’) of the new guidelines, which impact 

First and Fourth Amendment rights. Among other things, that section specifically authorizes activities that will detect information 

about terrorism and other crimes ‘‘even in the absence of checking 

of leads, preliminary inquiry, and full investigation.’’ For instance, 

the guidelines authorize the collection and use of information from 

databases either public, commercial or non-profit, otherwise known 

as ‘‘data mining.’’ Second, agents are authorized to ‘‘attend any 

place or event on the same terms and conditions as the public generally.’’ Third, the FBI can ‘‘conduct research including online research, accessing online sites and forums, on the same terms as the 

public generally.’’ 112 Finally, the guidelines explicitly declare that 

files kept as a result of any investigations conducted under the 

newly enacted guidelines, including those authorized in Section VI, 

are not subject to the protections of the Privacy Act. 

The revisions also relax restrictions against the use of intrusive 

techniques in preliminary inquiries and general investigations. In 

addition to removing terms and phrases cautioning against the use 

of intrusive techniques that may invade the privacy of and reputation of subjects of preliminary inquiries, the guidelines state, ‘‘the 

FBI shall not hesitate to use any lawful techniques consistent with 

these guidelines, even if intrusive, where the intrusiveness is warranted in light of the seriousness of a crime, or the strength of the 

479

information indicating its commission or potential future commission.’’ The guidelines, also remove the requirement for supervisory 

approval for the use of these intrusive techniques. Many of these 

safeguards had been implemented as far back as 1976 with the introduction of the Levi Guidelines to address civil liberty concerns. 

Regrettably, Attorney General Ashcroft turned a blind eye to these 

concerns. 

Finally, the Ashcroft guidelines considerably relax the supervisory role of FBI HQ for all criminal investigations. For example, 

the guidelines permit field agents to extend the duration of preliminary inquiries for up to one full year without first having to obtain 

approval from FBI HQ. Furthermore, as pointed out in the previous section, the guidelines permit these agents to obtain such extensions while also enabling them to utilize many of the more intrusive investigative techniques. The combination of these two 

changes vests field agents with excessive authority and runs 

counter to many initiatives announced by Director Mueller to promote increased coordination between field offices and FBI HQ. 

J. MIS-CLASSIFICATION OF TERRORISM INVESTIGATIONS

We are also disappointed that the majority has refused to look 

into the continuing efforts by the Administration to misclassify terrorism investigations. We hope that the U.S. will find and catch 

those who we know to be terrorists. However, it does no one any 

good for the Administration to lie about how many terrorism-related cases it has brought. In June 2005, the Washington Post reported that only 39 people—not the 200 implied by President 

Bush—have been convicted of terrorism-related crimes since 9/11. 

In fact, 180 of the people charged in these ‘‘terrorism probes’’ had 

no demonstrated connection to terrorism or terrorist groups; most 

people were convicted of minor crimes such as making false statements. Similarly, 60 of 62 ‘‘terror prosecutions’’ in New Jersey in 

2002 were against Middle Eastern men who paid others to take 

school-related English proficiency tests for them. However, the majority has refused to take any action to determine how successful 

our terrorism investigations and our war on terrorists actually has 

been, and, if these numbers are true, what steps are needed to 

make sure we actually are able to catch and prosecute terrorists. 

K. SAFE HAVENS FOR TERRORIST ASSETS

Another concern we have with the underlying legislation is that 

it fails to deal with the current law problems limiting the ability 

of victims and their families to obtain compensation for the damages they have suffered. 

While, it may seem difficult to conceive of situations where the 

United States prevents its citizens from seeking justice for terrorist 

acts, there are several examples of how the current Administration 

sought to barr victims from obtaining legal judgment. First, the Administration barred the Iran hostages held from 1979–1981 from 

satisfying their judgment against the government of Iran. In 2000, 

they initiated a suit against Iran under the terrorist State exception to the Foreign Sovereign Immunity Act. While a federal district court held Iran to be liable, the U.S. government intervened 

and argued that the case should be dismissed because Iran had not 

480

113Roeder v. Islamic Republic of Iran, 195 F. Supp. 2d 140 (D.D.C. 2002), aff’d 333 F.3d 228 

(D.C.Cir. 2003), cert. denied 124 S.Ct. 2836 (2004). 114David G. Savage, Justices Are Asked to Reject POWs’ Case Against Iraq, L.A. Times, 

March 23, 2005. 115 Ultimately, the Second Circuit overturned the matter stating, (1) the United States should 

have been allowed to intervene in the district court even post judgment because of its policy 

concerns; (2) we were correct that the President was not granted the authority by Congress to 

nullify non-sanctions/appropriations laws, including our jurisdictional statute (FSIA), in the 

April 2003 Emergency Wartime Supplemental Appropriations Act; but, (3) the court sua sponte 

ruled that because of an intervening change in law in a separate case in January 2004 (CicippioPuleo), the decision in Acree had to be vacated. 

been designated a terrorist state at the time of the hostage incident 

and because the Algiers Accords that led to the hostage release required the United Sates to bar the adjudication of suits based on 

that incident.113 As a result, the hostages received no compensation 

for their suffering. 

Second, American servicemen who were harmed in a Libyan 

sponsored bombing of the La Belle disco in Germany were obstructed from obtaining justice for the terrorist acts they suffered. 

While victims of the attack pursued settlement of their claims 

against the Libyan government, the Administration lifted sanctions 

against Libya without requiring as a condition the determination 

of all claims of American victims of terrorism. As a result of this 

action, Libya abandoned all talks with the claimants. Further, because Libya was no longer considered a state sponsor of terrorism, 

the American servicemen and women and their families were left 

without recourse to obtain justice. The La Belle victims received no 

compensation for their suffering. 

In addition, a group of American prisoners who were tortured in 

Iraq during the Persian Gulf war were barred by the Bush Administration from collecting their judgment from the Iraqi government.114 Although the 17 veterans won their case in the District 

Court of the District of Columbia, the Administration argued that 

the Iraqi assets should stay frozen in the U.S. bank account to aid 

in the reconstruction of Iraq.115 Claiming that the judgment should 

be overturned, the Administration deems that rebuilding Iraq is 

more important than the suffering of fighter pilots who during 

their 12-year imprisonment suffering beatings, burns, and threats 

of dismemberment. 

Finally, the World Trade Center victims were barred from obtaining judgment against the Iraqi government. In their claim 

against the Iraqi government, the victims were awarded $64 million against Iraq in connection with the September 2001 attacks. 

However, they were rebuffed in their efforts to attach the vested 

Iraqi assets. While the judgment was sound, the Second Circuit 

Court of Appeals affirmed the lower court’s finding that the Iraqi 

assets, now transferred to the U.S. Treasury, were protected by 

U.S. sovereign immunity and were unavailable for judicial attachment. 

We would hope that any final legislation would address this 

issue and allow U.S. victims of terrorism to obtain justice from terrorist supporting nations. 

481

116G.A.O. Rep. No. 05–127, at 3 (2005). 

V. THE LEGISLATION DOES NOT PROVIDE LAW ENFORCEMENT WITH

THE RESOURCES AND TOOLS IT NEEDS TO MEANINGFULLY COMBAT TERRORISM

Two of the most important keys to winning the war against terrorism include providing sufficient funding and resources to law enforcement officials so that they can adequately protect the homeland and closing current loopholes in existing law which make it 

easier for would-be terrorists to gain access to dangerous weaponry 

and materials. Regrettably, H.R. 3199 does absolutely nothing to 

address either of these important issues. 

A. PREVENTING TERRORISTS FROM BUYING GUNS

America’s gun laws are wide open compared to the rest of the developed world. Foreign groups promoting various forms of armed 

conflict, including ‘‘jihad’’ have advised would-be warriors that, because of its lax gun laws, the United States is the ideal place to 

get guns and firearms training to prepare for armed conflict. 

The overseas groups understand that, with little more than a 

credit card and a driver’s license, terrorists can outfit themselves 

with military grade firepower—including .50-caliber sniper rifles, 

assault weapons, and exotic ammunition. 

While they are not ‘‘weapons of mass destruction,’’ any gun in the 

hand of a terrorist is a danger to Americans. But, shockingly, our 

current gun laws have an alarming loophole that allows suspected 

and actual members of terrorist organizations to legally purchase 

guns. 

In fact, according to a recently released GAO report 116, over the 

course of a nine-month span last year, a total of fifty-six (56) firearm purchase attempts were made by individuals designated as 

known or suspected terrorists by the federal government. 

In forty-seven (47) of those cases, state and federal authorities 

were forced to permit such transactions to proceed because officials 

were unable to find any disqualifying information (such as a prior 

felony conviction or court-determined ‘mental defect’) in the individual applicant’s background. 

To address this problem, during the course of the Committee’s 

consideration of H.R. 3199, Mr. Conyers and Mr. Van Hollen offered an amendment to make the transfer of a firearm to someone 

the person knows is on the Justice Department’s Violent Gang and 

Terrorist Organization File (a.k.a. the ‘‘terrorist watch list’’) fall 

under the prohibition of providing ‘‘material support’’ to terrorists. 

As the name implies, this is a list of known violent gang and terrorist organization members. It seems apparent that if the U.S. is 

willing to wage war in order to keep WMDs out of the hands of possible terrorists, the U.S. should keep domestic guns out of the 

hands of terrorists in the United States. 

Unfortunately, this amendment failed by a vote of 15–22. 

Shockingly, a number of Republicans stated they opposed the 

amendment because it would harm the Second Amendment rights 

of known terrorists. While they are perfectly willing to intrude on 

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rants and without cause, and to lock people up indefinitely without 

charging them of any crime, these same Members argued that a 

terrorist’s right to bear arms was more important than trying to 

stop terrorists from buying guns and potentially using them for another deadly attack on the United States. 

B. PREVENTING THE SALE AND MANUFACTURE OF .50-CALIBER GUNS

While current law does regulate the transfer of certain firearms 

including machine guns, it does not regulate the sale of .50-caliber 

sniper rifles which are advertised by their manufacturers as capable of shooting down aircraft. These weapons are important for 

military use, but are currently also available for purchase by the 

general public, including terrorists. We know that in the 1980s 

Essam Al-Ridi purchased .50-caliber rifles in Texas and then 

shipped them to Osama bin Laden. Similarly, in 1989, a gunrunner 

named Florin Krasniqi came to the U.S. to purchase .50-caliber rifles and subsequently shipped them to the Kosovo Liberation 

Army. 

Capable of inflicting a devastatingly accurate impact from well 

over a mile away, the U.S. Army handbook on urban combat states 

that .50-caliber sniper rifles are intended for use as anti-materiel 

weapons, designed to attack bulk fuel tanks and other high-value 

targets from a distance, using ‘‘their ability to shoot through all but 

the heaviest shielding material.’’ These weapons are a serious 

threat for use against civil aviation, hazardous cargo transport vehicles and rail cars carrying hazardous materials such as chlorine 

gas. And needless to say, their ability to emit powerful projectiles 

accurately over long distances make .50-caliber rifles a favorite 

weapon of war lords, drug cartels and terrorists due to its unparalleled potential for damage. 

During the course of the Committee’s consideration of H.R. 3199, 

Ms. Lofgren introduced an amendment which would have made it 

a crime under the material support provision of the Patriot Act to 

transfer a .50-caliber sniper rifle to any person the transferor 

knows to be a member of Al Qaeda. Obviously, such an amendment 

would provide an important mechanism to help keep dangerous, 

high-powered weapons out of the hands of known terrorists. However, once again, the Republicans voted down this necessary and 

commonsense measure to help protect the United States from 

harm. 

C. REGULATING THE SALE OF SMOKELESS AND BLACK POWDER

Alarmed by a manifesto issued by confessed Olympic bomber Eric 

Rudolph justifying violence to stop abortions, the federal Bureau of 

Alcohol, Tobacco, Firearms and Explosives (ATF) is now urging 

clinics to evaluate and enhance their security. Yet while the ATF 

warns potential targets of this threat, supporters of H.R. 3199 

refuse to do anything through this legislation to stop the virtually 

unregulated sale of the two substances most commonly used in improvised explosive devices in the United States—smokeless powder 

and black powder. 

Smokeless powder—Rudolph’s weapon of choice in the Olympic 

Park bombing—is used by people who like to ‘‘reload’’ their own 

ammunition. Black powder is used in muzzle-loading guns for 

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117G.A.O. Rep. No. 05–699 at 2 (2005). 118 Ibid. 

hunting and historical re-enactments. Because smokeless powder 

qualifies as ‘‘small arms ammunition and components thereof, it is 

exempt from the federal law regulating the manufacture and sale 

of explosives. 

Commercially manufactured black powder in quantities of less 

than 50 pounds is also exempt. Rudolph reportedly bought the 

smokeless powder he packed into the Olympic Park bomb from a 

Tennessee gun dealer, one of approximately 60,000 federally licensed firearms dealers (FFLs) in America. 

After the September 11th attacks, ATF became concerned that 

other terrorists would utilize the explosives loophole exploited by 

Rudolph. The agency started a campaign urging FFLs to ‘‘Be 

Aware for America,’’ and in a July 2004 letter ATF reminded dealers, ‘‘Some of the products you may carry in your inventory, such 

as black powder and smokeless powder, could be used in acts of violence. While smokeless powder and black powder generally are exempt from the Federal explosives laws, these products are often 

used to make illegal or ‘improvised explosives devices’ and pipe 

bombs.’’ 

Unfortunately, thanks to the powerful gun lobby, for now this 

mild entreaty to gun dealers appears to be the full extent of the 

federal government’s efforts to prevent terrorists from getting 

smokeless or black powder. 

D. INCREASING GRANTS TO FIRST RESPONDERS

Another problem in the war on terror is that the United States 

has no sufficient allocated money to keep our country safe. Local 

and state law enforcement officers have been laid off, schools are 

getting more dangerous by the second, and not enough persons 

have been hired to perform intelligence, terrorism and homeland 

security duties. 

In local communities across the United States, the first line of 

defense against terrorists and other violent crime is the local police 

department. More police on the streets could be useful in thwarting 

potential terrorist attacks and also protecting the community from 

the more conventional violent criminals and violent crimes. 

During the 1990s, the Clinton Administration implemented the 

Office of Community Oriented Policing Services (COPS). The goal 

of the program was to put 100,000 new police officers on the streets 

of America’s communities. A new GAO Report indicates that the 

COPS program did cause the level of violent crimes in America to 

decline. During the time that agencies were spending COPS funds, 

violent crime declined.117 For example, between 1994 and 2001, the 

number of violent crimes declined from about 1.9 million to about 

1.4 million (or about 23 percent), and the violent crime rate per 

100,000 population declined from 714 to 504 (or about 29 percent).118

Mr. Weiner and Ms. Sa ́nchez therefore offered an amendment to 

expand the grants available for such measures. Their amendment 

would increase funding for first responders in state and local communities, provide for retention funds to keep law enforcement in 

484

119Follow the Port Security Money, N.Y. Times, February 28, 2005. 120 Ibid. 121Doing Business with the Enemy, 60 Minutes (2004), at http://www.cbsnews.com/stories/

2004/01/22/60minutes/main595214.shtml. 122 Ibid. 123 Ibid. 124 Bob Herbert, Dancing with the Devil, N.Y. Times, May 22, 2003. 125 International Emergency Economic Powers Act, § 35, 50 U.S.C. § 1701 (2003). 

depressed areas, and increase funding for school security as well as 

intelligence, terrorism, and homeland security programs. Unfortunately, the Republicans derailed this amendment by raising a point 

of order on the grounds of germaneness. 

E. SECURING OUR NATION’S PORTS

The ‘‘soft underbelly’’ of our national security defensive against 

terrorism is the security of our nation’s ports. This fact has been 

repeated in numerous studies and even cited in the documentary 

Fahrenheit 911 by Michael Moore. According to a report in the 

New York Times, an audit on spending for port security shows ‘‘far 

too little money appropriated; much of the appropriated money not 

spent; and much of the money that was spent going for the wrong 

things.’’ 119 Just recently, the United States Coast Guard estimated 

that scanning equipment for the six million shipping containers 

that enter the United States every year would cost $5.4 billion over 

the next 10 years; however, federal port security grant programs 

have only allocated less than $600 million since 2002.120

It is only a matter of time before terrorists will exploit this weakness and possibly transport biological/chemical weapons and/or 

weapons of mass destruction into the United States using cargo 

containers. In 2002, terrorists had an 82.5 percent chance of doing 

this completely undetected. This is an unacceptable risk to the 

American government and people. 

F. ELIMINATING TRADE WITH TERRORIST COUNTRIES

The United States government has successfully targeted various 

front organizations in the United States that send funds to terrorist causes all over the world; however, phoney Islamic charities 

are not the only organizations in the United States that have done 

business with countries that sponsor terrorism. According to a 60 

Minutes report, ‘‘there are U.S. companies that are helping drive 

the economies of countries like Iran, Syria, and Libya, all places 

that have sponsored terrorism.’’ 121 William Thompson, New York 

City comptroller, has identified three companies, Halliburton, Conoco-Phillips, and General Electric, that have invested in these 

‘‘rouge countries.’’ 122 Halliburton is the same company that Vice 

President Richard Cheney ran from 1995 to 2000, ‘‘during which 

time Halliburton Products and Services set up shop in Iran. Today, 

its sells about $40 million a year worth of oil field services to the 

Iranian government.’’ 123 According to Bob Herbert, Halliburton has 

had a ‘‘history of ripping off the government’’ and made ‘‘zillions 

doing business in countries that sponsor terrorism, including members of the ‘axis of evil’ that is so despised by this president.’’ 124

Currently, United States law prohibits U.S. companies from 

doing business with nations that sponsor terrorism.125 However, 

some U.S. companies have found a loophole in the law and are ‘‘deVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00488 Fmt 6604 Sfmt 6602 E:\HR\OC\HR174P1.002 HR174P1
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126Lautenberg to Offer Amendment to the FSC–ETI Bill, Sen. Lautenberg’s Website (2004), 

at http://lautenberg.senate.gov/∼lautenberg/press/2003/01/2004422BO8.html. 127 Herbert, supra note 4. 128Lautenberg to Offer Amendment to the FSC–ETI Bill, supra note 6. 

liberately bypassing U.S. sanction laws by the use of the ‘foreign 

subsidiary’ loophole, thereby providing terrorist states with more 

revenue to finance terrorist operations.’’ 126 U.S. Congressman 

Henry Waxman found that Halliburton in particular has circumvented the law by setting up subsidiaries in places such as the 

Cayman Islands.127

In a effort to close the loophole, U.S. Senator Frank Lautenberg 

offered S.A. 3151, an amendment to the International Emergency 

Economic Powers Act, that redefined corporate entities subject to 

U.S. sanction law to include ‘‘not only U.S. companies and all foreign branches, but also foreign subsidiaries controlled over 50 percent by their parent American company.’’ 128 This amendment 

would have stopped companies like Halliburton who have subsidiary companies that conduct business with countries like Iran 

and Lybia. The amendment was defeated in the U.S. Senate by one 

vote in 2004. 

G. PENALIZING THOSE WHO LEAK CLASSIFIED INFORMATION

This Administration and the Republican majority in Congress 

have continually accused Democratic Members of Congress, as well 

as many American citizens, of ‘‘aiding the terrorists’’ by speaking 

out against actions and policies that appear extreme and unnecessary. However, these same individuals have remained silent when 

it has been discovered that members of the Administration and 

others have knowingly leaked classified information that identifies 

covert operatives and literally put their lives at risk. 

Current U.S. law concerning such leaks is insufficient to protect 

those who put their lives at risk every day for this country. Many 

have noted that it is difficult to meet the requirements necessary 

to be found in violation of this law. As a result, Mr. Wexler offered 

an amendment to fix this problem. The Wexler amendment would 

penalize anyone who reveals any information that might identify 

an intelligence officer or source and put their lives in danger. However, the Republicans defeated this amendment by voice vote. 

H. IMPROVING THE TERRORIST WATCH LIST

Finally, there is true need for an accurate and up-to-date Terrorist Watch List such that it can be effectively used to identify 

and catch suspected and known terrorists. To this end, it is important to ensure that the list does not misidentify people and therefore divert needed resources away from catching the true terrorists. 

Mr. Van Hollen introduced an amendment which would require 

the Inspector General to report to Congress on the progress of the 

Terrorist Screening Center in developing procedures by which to 

remove misidentified names from the Terrorist Watch List. This 

amendment is important on two fronts: (1) it will ensure that resources are not spent tracking the wrong people, and (2) it will protect Americans and other persons who are mistakenly identified as 

terrorists by providing a mechanism for them to clear their name. 

The much publicized case of Senator Edward Kennedy spending 

486

many hours to clear his name from this list highlights the problem 

confronting ordinary citizens. And, our counterterrorism officers 

need to be assured that they can focus on stopping those who truly 

intend to do harm to the United States. This amendment was rejected by the majority. 

Considering that the majority often suggests we are in a perpetual war against terrorists, including terrorists who wish to attack the United States, we are disappointed that they flatly rejected amendments which would directly help the United States 

fight terrorists and prevent terrorism. That all of these reasonable 

measures to enure our safety were rejected contributed to our collective decision not to support this bill. 

VI. DESCRIPTION OF AMENDMENTS OFFERED BY DEMOCRATIC

MEMBERS

During the mark-up thirty-nine (39) amendments were offered by 

Democratic members. The following section provides a brief description of each of these amendments: 

1. Nadler Amendment—Description of Amendment: The amendment would amend section 215 of the PATRIOT Act to allow for recipients to challenge the orders, and to allow recipients to petition 

to set aside the non-disclosure requirement. It would also limit Section 215 order to those certified as ‘‘agents of a foreign power.’’ 

Vote on Amendment: The amendment was defeated by a vote of 

23–12. Ayes: Representatives Conyers, Berman, Boucher, Nadler, 

Scott, Watt, Waters, Delahunt, Weiner, Sanchez, Van Hollen, 

Wasserman Schultz, Nays: Representatives Sensenbrenner, Hyde, 

Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren, Cannon, Inglis, Hostettler, Green, Keller, Issa, Flake, Pence, Forbes, King, 

Feeney, Franks, Gohmert, Lofgren, Schiff. 

2. Scott Amendment—Description of Amendment: The amendment dealt with the limitation on authority to delay notice of 

search warrants. This amendment would strike ‘‘reasonable period’’ 

from section 3103a of Title 18, U.S.C. and replace with ‘‘seven calender days’’ and applications thereafter to be extended by the court 

for an additional 30 calender days for good cause shown to the 

court. 

Vote on Amendment: The amendment was withdrawn. 

3. Waters Amendment—Description of Amendment: The amendment stated that national security letters would not be issued to 

a health insurance company. 

Vote on Amendment: The amendment was defeated by a vote of 

23–14. Ayes: Representatives Conyers, Berman, Boucher, Nadler, 

Scott, Watt, Lofgren, Waters, Delahunt, Wexler, Weiner, Schiff, 

Sanchez, Van Hollen, Nays: Representatives Sensenbrenner, Hyde, 

Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren, Jenkins, Cannon, Inglis, Hostettler, Green, Keller, Issa, Flake, Pence, Forbes, 

King, Feeney, Franks, Gohmert, Wasserman Schultz. 

4. Scott Amendment—Description of Amendment: The amendment is a second degree amendment to the Lungren Amendment. 

The Lungren Amendment sunsetted Sections 206 and 215 of the 

PATRIOT Act in 2015. The Scott Amendment would sunset these 

provisions in 2009. 

487

Vote on Amendment: The amendment was defeated by a party 

line vote of 21–15. Ayes: Representatives Conyers, Berman, Nadler, 

Scott, Watt, Lofgren, Waters, Meehan, Delahunt, Wexler, Weiner, 

Schiff, Sanchez, Van Hollen, Wasserman Schultz, Nays: Representatives Sensenbrenner, Coble, Smith, Gallegly, Goodlatte, Chabot, 

Lungren, Jenkins, Cannon, Inglis, Hostettler, Green, Keller, Issa, 

Flake, Pence, Forbes, King, Feeney, Franks, Gohmert. 

5. Nadler Amendment—Description of Amendment: This a second 

degree amendment to the Lungren amendment. It would sunset 

Sections 206 and 215 in 2011. 

Vote on Amendment: The amendment was defeated on a party 

line vote of 9–18. Ayes: Representatives Conyers, Nadler, Scott, 

Watt, Meehan, Delahunt, Schiff, Sanchez, Nays: Representatives 

Sensenbrenner, Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren, Jenkins, Cannon, Inglis, Hostettler, Green, Issa, Forbes, 

King, Feeney, Gohmert. 

6. Nadler and Lofgren Amendment—Description of Amendment:

This amendment would sunset the remaining 14 expiring provisions in 2015. 

Vote on Amendment: The amendment was defeated on a party 

line vote of 12–21. Ayes: Representatives Conyers, Berman, Boucher, Nadler, Scott, Lofgren, Meehan, Delahunt, Weiner, Schiff, 

Sanchez, Van Hollen; Nays: Representatives Sensenbrenner, Hyde, 

Coble, Smith, Gallegly, Chabot, Lungren, Jenkins, Cannon, Inglis, 

Hostettler, Green, Keller, Issa, Flake, Pence, Forbes, King, Feeney, 

Franks, Gohmert. 

7. Van Hollen and Conyers Amendment—Description of Amendment: This amendment would close the gun buying loophole by prohibiting the knowing sale of firearms to persons on the Violent 

Gang and Terrorist Organization File. 

Vote on Amendment: The Amendment was defeated by 15–22. 

Ayes: Representatives Conyers, Berman, Nadler, Scott, Lofgren, 

Waters, Meehan, Delahunt, Wexler, Weiner, Schiff, Sanchez, Van 

Hollen, Wasserman Schultz; Nays: Representatives Sensenbrenner, 

Hyde, Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren, Jenkins, 

Inglis, Hostettler, Green, Keller, Issa, Flake, Pence, Forbes, King, 

Feeney, Franks, Gohmert, Boucher. 

8. Berman and Delahunt Amendment—Description of Amendment: This amendment would require a report on the use of datamining technology and procedures, as well as measures to protect 

privacy with the use of data-mining. 

Vote on Amendment: The amendment was withdrawn. 

9. Schiff and Waters Amendment—Description of Amendment:

This amendment would allow only the FBI Director to obtain medical records, and records from libraries and bookstores under Section 215 of the PATRIOT Act. 

Vote on Amendment: The amendment was withdrawn. 

10. Wexler Amendment—Description of Amendment: This amendment adds the revealing of information about the identity of a covert operative to the list of predicate offenses for providing material 

support for terrorism. 

Vote on Amendment: The amendment was withdrawn. 

11. Schiff Amendment—Description of Amendment: This amendment would add to the list of activities which, if done willfully, will 

488

result in violating the statute which prohibits the planning of terrorist attacks on mass transportation (18 USC 1993(a)(3)). 

Vote on Amendment: The amendment was agreed to by voice 

vote. 

12. Lofgren Amendment—Description of Amendment: This 

amendment would prohibit the sale of .50-caliber sniper rifles to a 

person known to be a member of Al Qaeda. 

Vote on Amendment: This Amendment failed on a party line vote 

of 13–22. Ayes: Representatives Conyers, Berman, Nadler, Scott, 

Watt, Lofgren, Waters, Wexler, Weiner, Schiff, Sanchez, Van 

Hollen, Wasserman Schultz; Nays: Representatives Sensenbrenner, 

Hyde, Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren, Jenkins, 

Cannon, Inglis, Hostettler, Green, Keller, Issa, Flake, Pence, 

Forbes, King, Feeney, Franks, Gohmert. 

13. Weiner and Sanchez Amendment—Description of Amendment: This Amendment would increase grants to first responders, 

as well as grants for school security and retention grants for local 

law enforcement. 

Vote on Amendment: This amendment was ruled non-germane. 

14. Lofgren Amendment—Description of Amendment: This 

amendment would require the Inspector General of the Department of Justice to review the detentions of persons under the material witness statute (18 USC 3144) in its reports required by Section 1001 of the PATRIOT Act. 

Vote on Amendment: This amendment was agreed to unanimously, on a vote of 34–0. 

15. Schiff Amendment—Description of Amendment: This amendment would amend section 105(c) of the Foreign Intelligence Surveillance Act (Section 206 of the PATRIOT Act) to require that 

where the identity of the target of surveillance is not known, a specific description is provided of the target. 

Vote on Amendment: This amendment failed on a party line vote 

of 15–22. Ayes: Representatives Conyers, Berman, Boucher, Nadler, Scott, Watt, Lofgren, Waters, Meehan, Delahunt, Wexler, 

Schiff, Sanchez, Van Hollen, Wasserman Schultz; Nays: Representatives Sensenbrenner, Hyde, Coble, Smith, Gallegly, Goodlatte, 

Chabot, Lungren, Jenkins, Cannon, Inglis, Hostettler, Green, Keller, Issa, Flake, Pence, Forbes, King, Feeney, Franks, Gohmert. 

16. Nadler and Jackson Lee Amendment—Description of Amendment: This amendment would amend Section 206 of the PATRIOT 

Act to make FISA wiretaps like criminal wiretaps in that the FBI 

must choose between obtaining either a roving wiretap or a ‘‘John 

Doe’’ wiretap. 

Vote on Amendment: The Amendment was withdrawn. 

17. Watt Amendment—Description of Amendment: This amendment allows targets of nationwide search warrants to challenge 

them in the district where the warrant is served. 

Vote on Amendment: This amendment was defeated by a vote of 

14–24: Ayes: Representatives Conyers, Berman, Boucher, Nadler, 

Scott, Watt, Lofgren, Waters, Meehan, Delahunt, Wexler, Weiner, 

Sanchez, Van Hollen; Nays: Representatives Sensenbrenner, Hyde, 

Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren, Jenkins, Cannon, Inglis, Hostettler, Green, Keller, Issa, Flake, Pence, Forbes, 

King, Feeney, Franks, Gohmert, Schiff, Wasserman Schultz. 

489

18. Schiff Amendment—Description of Amendment: This amendment (a) adds to the list of predicate offenses which are considered 

‘‘federal crimes of terrorism’’; (b) allows for the forfeiture of property involved in the trafficking of weapons of mass destruction; and 

(c) adds numerous crimes related to terrorism to the list of offenses 

for which oral and wire communications may be intercepted under 

18 U.S.C. 2516. 

Vote on Amendment: This amendment was agreed to by voice 

vote. 

19. Lofgren Amendment—Description of Amendment: This 

amendment would ensure that no law passed after 9/11, including 

the PATRIOT Act, would suspend the writ of habeas corpus. 

Vote on Amendment: This amendment was initially agreed to by 

voice vote. There was then a successful vote in favor of reconsidering the amendment. The amendment then was defeated on a 

party line vote of 14–23. Ayes: Representatives Conyers, Berman, 

Boucher, Nadler, Scott, Watt, Lofgren, Delahunt, Wexler, Weiner, 

Schiff, Sanchez, Van Hollen, Wasserman Schultz; Nays: Representatives Sensenbrenner, Hyde, Coble, Smith, Gallegly, Goodlatte, 

Chabot, Lungren, Jenkins, Cannon, Baucus, Inglis, Hostettler, 

Green, Keller, Issa, Flake, Pence, Forbes, King, Feeney, Franks, 

Gohmert. 

20. Schiff Amendment—Description of Amendment: This amendment would eliminate the nondisclosure requirement of a Foreign 

Intelligence Surveillance Court order for business records from a library, bookstore, or for medical records, when an individual is a 

citizen of the United States, at the conclusion of investigation. 

Vote on Amendment: The amendment failed by a recorded vote 

of 13 yeas and 20 nays. Ayes: Representatives Conyers, Berman, 

Boucher, Scott, Waters, Delahunt, Wexler, Weiner, Schiff, Sanchez, 

Van Hollen, Wasserman Schultz, Goodlatte; Nays: Representatives 

Sensenbrenner, Coble, Smith, Gallegly, Chabot, Lungren, Jenkins, 

Cannon, Baucus, Inglis, Hostettler, Green, Keller, Issa, Flake, 

Pence, Forbes, King, Feeney, Franks. 

21. Wexler Amendment—Description of Amendment: This amendment would add to Section 805 on Material Support for Terrorism 

in the PATRIOT Act the act of revealing identifying information 

about a U.S. covert operative. 

Vote on Amendment: This amendment failed on a voice vote. 

22. Schiff Amendment—Description of Amendment: This amendment would obligate all funds authorized for the Victims of Crime 

Fund, through the Victims of Crime Act of 1984, to be used. 

Vote on Amendment: This amendment was ruled non-germane. 

23. Watt and Waters Amendment—Description of Amendment:

This amendment would strike section 8(c) of H.R. 3199 to eliminate 

the nondisclosure requirement of a Foreign Intelligence Surveillance Act Court order for business records in a national security 

case unless law enforcement in an ‘‘application for such an order 

provides specific and articulable facts giving the applicant reason 

to believe that disclosure would result’’ in adverse affects specified 

in the amendment. 

Vote on Amendment: This amendment failed on a vote of 13–23. 

Ayes: Representatives Conyers, Berman, Nadler, Scott, Watt, 

Lofgren, Waters, Delahunt, Wexler, Weiner, Sanchez, Van Hollen, 

490

Wasserman Schultz; Nays: Representatives Sensenbrenner, Hyde, 

Coble, Smith, Gallegly, Goodlatte, Lungren, Jenkins, Cannon, Baucus, Inglis, Hostettler, Green, Keller, Issa, Flake, Pence, Forbes, 

King, Feeney, Franks, Gohmert, Schiff. 

24. Scott Amendment—Description of Amendment: This amendment would entitle a person who prevails on a challenge of the legality of a section 215 order to reasonable attorneys fees, if any, 

incurred by the person in pursuing the challenge. 

Vote on Amendment: The amendment failed by a party line vote 

of 14–22. Ayes: Representatives Conyers, Berman, Nadler, Scott, 

Watt, Lofgren, Waters, Delahunt, Wexler, Weiner, Schiff, Sanchez, 

Van Hollen, Wasserman Schultz; Nays: Representatives Sensenbrenner, Hyde, Coble, Smith, Gallegly, Goodlatte, Lungren, Jenkins, Cannon, Baucus, Inglis, Hostettler, Green, Keller, Issa, Flake, 

Pence, Forbes, King, Feeney, Franks, Gohmert. 

25. Schiff Amendment—Description of Amendment: This amendment would sunset Section 6001 of the Intelligence Reform and 

Terrorism Prevention Act of 2004 (‘‘lone wolf’’) in 2008. 

Vote on Amendment: This amendment failed on a party line vote 

14–22. Ayes: Representatives Conyers, Berman, Nadler, Scott, 

Watt, Lofgren, Jackson Lee, Waters, Delahunt, Weiner, Sanchez, 

Van Hollen, Wasserman Schultz; Nays: Representatives Sensenbrenner, Hyde, Coble, Smith, Gallegly, Goodlatte, Lungren, Jenkins, Cannon, Baucus, Inglis, Hostettler, Green, Keller, Issa, Flake, 

Pence, Forbes, King, Feeney, Franks, Gohmert. 

26. Nadler, Jackson Lee and Waters Amendment—Description of 

Amendment: This amendment would limit the length of delays for 

delayed notification search warrants under Section 213 of the PATRIOT Act. Delays would be limited to 30 days, with extensions of 

up to 60 days. 

Vote on Amendment: This Amendment was withdrawn. 

27. Jackson Lee Amendment—Description of Amendment: This 

amendment would amend Section 218 of the PATRIOT Act to provide that notice be given to the target of a search if the target is 

a U.S. person who is found not to be an agent of a foreign power. 

Vote on Amendment: This amendment failed on a party line vote 

of 10–23. Ayes: Representatives Conyers, Nadler, Scott, Watt, Jackson Lee, Waters, Weiner, Sanchez, Van Hollen, Wasserman 

Schultz; Nays: Representatives Sensenbrenner, Hyde, Coble, 

Smith, Gallegly, Goodlatte, Chabot, Lungren, Jenkins, Cannon, 

Baucus, Inglis, Hostettler, Green, Keller, Issa, Flake, Pence, 

Forbes, King, Feeney, Franks, Gohmert. 

28. Flake and Nadler Amendment—Description of Amendment:

This amendment would amend Section 213 of the PATRIOT Act to 

provide that delays in notification can last for 180 days, with extensions of up to 90 days. 

Vote on Amendment: This amendment was agreed to by voice 

vote. 

29. Conyers Amendment—Description of Amendment: This 

amendment would (a) treat electronic communications interception 

like wire and oral communications under 18 US 2515; (b) require 

a report on the disclosure of contents of electronic communications 

by the A.C. to the Congress; and (c) increase to $10,000 the amount 

recoverable under 18 USC 2707(c).

491

Vote on Amendment: This amendment was defeated on a party 

line vote of 14–23. Ayes: Representatives Conyers, Berman, Nadler, 

Scott, Watt, Lofgren, Jackson Lee, Waters, Delahunt, Weiner, 

Schiff, Sanchez, Van Hollen, Wasserman Schultz; Nays: Representatives Sensenbrenner, Hyde, Coble, Smith, Gallegly, Goodlatte, 

Chabot, Lungren, Jenkins, Cannon, Baucus, Inglis, Hostettler, 

Green, Keller, Issa, Flake, Pence, Forbes, King, Feeney, Franks, 

Gohmert 

30. Nadler Amendment—Description of Amendment: This 

amendment would authorize disclosure of a National Security Letter to ‘‘qualified persons,’’ including one’s attorney. It also provides 

that the non-disclosure period will last 180 days, with extensions 

of up to 90 days, if the government proves disclosure would result 

in a clear harm. 

Vote on Amendment: This amendment was defeated 14–23. Ayes: 

Representatives Conyers, Berman, Nadler, Scott, Watt, Lofgren, 

Jackson Lee, Waters, Delahunt, Weiner, Schiff, Sanchez, Van 

Hollen, Wasserman Schultz; Nays: Representatives Sensenbrenner, 

Hyde, Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren, Jenkins, 

Cannon, Baucus, Inglis, Hostettler, Green, Keller, Issa, Flake, 

Pence, Forbes, King, Feeney, Franks, Gohmert. 

31. Schiff Amendment—Description of Amendment: This amendment would grant citizenship to alien spouses and children of certain victims of the 9/11 attacks. 

Vote on Amendment: This amendment was ruled non-germane. 

32. Scott Amendment—Description of Amendment: This amendment amend section 105(c) of the Foreign Intelligence Surveillance 

Act to require surveillance may be directed at a place or facility 

only for such time as the applicant believes that such facility or 

place is being used, or about to be used by the target of the surveillance. 

Vote on Amendment: The amendment failed by a party line vote 

of 13 yeas to 23 nays. Ayes: Representatives Conyers, Berman, 

Nadler, Scott, Watt, Lofgren, Jackson Lee, Waters, Delahunt, 

Weiner, Sanchez, Van Hollen, Wasserman Schultz; Nays: Representatives Sensenbrenner, Hyde, Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren, Jenkins, Cannon, Baucus, Inglis, 

Hostettler, Green, Keller, Issa, Flake, Pence, Forbes, King, Feeney, 

Franks, Gohmert. 

33. Schiff Amendment—Description of Amendment: This amendment would require a report on the use of National Security Letters (Section 505 of the PATRIOT Act) by the Attorney General for 

the preceding year. 

Vote on Amendment: This amendment failed by a party line vote 

of 15–21. Ayes: Representatives Conyers, Berman, Nadler, Scott, 

Watt, Lofgren, Jackson Lee, Waters, Delahunt, Wexler, Weiner, 

Schiff, Sanchez, Van Hollen, Wasserman Schultz; Nays: Representatives Sensenbrenner, Hyde, Coble, Gallegly, Goodlatte, Chabot, 

Lungren, Jenkins, Cannon, Baucus, Inglis, Hostettler, Green, Keller, Issa, Flake, Pence, Forbes, King, Feeney, Franks. 

34. Jackson Lee Amendment—Description of Amendment: This 

amendment would prohibit medical records from being obtained 

with a Section 215 order. 

492

Vote on Amendment: This amendment failed by a vote of 12–24. 

Ayes: Representatives Conyers, Nadler, Scott, Watt, Lofgren, Jackson Lee, Waters, Delahunt, Wexler, Weiner, Sanchez, Van Hollen; 

Nays: Representatives Sensenbrenner, Hyde, Coble, Gallegly, Goodlatte, Chabot, Lungren, Jenkins, Cannon, Baucus, Inglis, 

Hostettler, Green, Keller, Issa, Flake, Pence, Forbes, King, Feeney, 

Franks, Gohmert, Schiff, Wasserman Schultz. 

35. Van Hollen Amendment—Description of Amendment: This 

amendment requires a report by the DOJ Inspector General on procedures and guidelines to ensure the accuracy of the Terrorist 

Watch List, including how to remove misidentified persons. 

Vote on Amendment: This amendment failed on a party line vote 

of 15–23. Ayes: Representatives Conyers, Berman, Nadler, Scott, 

Watt, Lofgren, Jackson Lee, Meehan, Delahunt, Wexler, Weiner, 

Schiff, Sanchez, Van Hollen, Wasserman Schultz; Nays: Representatives Sensenbrenner, Hyde, Coble, Smith, Gallegly, Goodlatte, 

Chabot, Lungren, Jenkins, Cannon, Baucus, Inglis, Hostettler, 

Green, Keller, Issa, Flake, Pence, Forbes, King, Feeney, Franks, 

Gohmert. 

36. Nadler Amendment—Description of Amendment: This 

amendment allows for the recipient of a National Security Letter 

to disclose receipt of the Letter to a ‘‘qualified person,’’ including 

one’s attorney. 

Vote on Amendment: This Amendment failed on a party line vote 

16–23. Ayes: Representatives Conyers, Berman, Nadler, Scott, 

Watt, Lofgren, Jackson Lee, Waters, Meehan, Delahunt, Wexler, 

Weiner, Schiff, Sanchez, Van Hollen, Wasserman Schultz; Nays: 

Representatives Sensenbrenner, Hyde, Coble, Smith, Gallegly, 

Goodlatte, Chabot, Lungren, Jenkins, Cannon, Baucus, Inglis, 

Hostettler, Green, Keller, Issa, Flake, Pence, Forbes, King, Feeney, 

Franks, Gohmert. 

37. Scott Amendment—Description of Amendment: This amendment would exempt humanitarian support such as medical services, food and water from the prohibition on providing Material 

Support to Terrorists (Section 805 of the PATRIOT Act). 

Vote on Amendment: This amendment failed on a vote of 7–31. 

Ayes: Representatives Conyers, Scott, Watt, Jackson Lee, Waters, 

Meehan, Delahunt; Nays: Representatives Sensenbrenner, Hyde, 

Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren, Jenkins, Cannon, Baucus, Inglis, Hostettler, Green, Keller, Issa, Flake, Pence, 

Forbes, King, Feeney, Franks, Gohmert, Berman, Nadler, Wexler, 

Weiner, Schiff, Sanchez, Van Hollen, Wasserman Schultz. 

38. Jackson Lee Amendment—Description of Amendment: This 

amendment would require a report by the Inspector General of 

DOJ under Section 1001 of the PATRIOT Act on any authorities 

used that go beyond the Attorney General Guidelines written in 

1989, such as racial profiling. 

Vote on Amendment: This amendment failed on a vote of 13–25. 

Ayes: Representatives Conyers, Nadler, Scott, Watt, Lofgren, Jackson Lee, Waters, Meehan, Wexler, Weiner, Sanchez, Van Hollen, 

Wasserman Schultz; Nays: Representatives Sensenbrenner, Hyde, 

Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren, Jenkins, Cannon, Baucus, Inglis, Hostettler, Green, Keller, Issa, Flake, Pence, 

Forbes, King, Feeney, Franks, Gohmert, Berman, Delahunt. 

493

39. Nadler and Scott Amendment—Description of Amendment: 

This amendment amends the National Security Letter statutes to 

allow recipients to challenge them in court. It also requires pen 

register and trap-and-trace orders under Section 214 to be limited 

to terrorism or espionage investigations. 

Vote on Amendment: This amendment was defeated on a voice 

vote. 

VII. CONCLUSION

There is no more difficult task we have as legislators than balancing our nation’s need for security against our citizens’ civil liberties. By passing this bill which largely ignores the most serious 

abuses of the PATRIOT Act, ignores the unilateral misuse of power 

by the Administration, and fails to provide adequate resources and 

funding to those on the ‘‘front line’’ in the fight against terrorism, 

we believe we will be failing in our task. 

If we are serious about combating terror in the 21st century, we 

must move beyond symbolic gestures and begin to make the hard 

choices needed to protect our nation. Unfortunately, this legislation 

does not make those choices. The lessons of September 11 are that 

if we allow law enforcement to do their work free of political interference, if we give them adequate resources and modern technologies, we can protect our citizens without intruding on their liberties. 

The bill before us today does not meet this test. It is our hope 

that we can come together on the House Floor and in conference 

and craft a bill that fights terrorism the right way, consistent with 

our constitution and our values, and in a manner that serves as a 

model for the rest of the world. For all of the aforementioned reasons, we respectfully dissent.

APPENDIX A, SECTION-BY-SECTION SUMMARY OF THE USA 

PATRIOT ACT OF 2001, H.R. 3162 

TITLE I: ENHANCING DOMESTIC SECURITY

Section 101: Counterterrorism fund—Establishes a 

counterterrorism fund to rebuild any Justice Department component that has been damaged or destroyed as a result of a terrorism 

incident; provide support for investigations and to pay terrorism-related rewards; and conduct terrorism threat assessments. 

Section 102: Sense of Congress condemning discrimination 

against Arab and Muslim Americans. 

Section 103: Increased funding for the FBI’s technical support 

center—Authorizes $200 million for each of FY 2002, 2003, and 

2004 for the technical support center. 

Section 104: Requests for military assistance to enforce prohibition in certain emergencies—Allows military to assist state and 

local law enforcement with domestic chemical weapons emergencies. 

Section 105: Expansion of National Electronic Crime Task Force 

Initiative—Directs the Secret Service to develop a national network 

with electronic crime task forces based on the New York Electronic 

Crime Task Force model. 

494

Section 106: Presidential Authority—Expands International Economic Emergency Powers Act to allow the President to confiscate 

and vest properties of an enemy when United States is engaged in 

military hostilities or has been subject to an attack by that enemy. 

It allows classified information, used to make a determination regarding national security or terrorism cases, to be submitted and 

in camera to the reviewing court of such determinations. 

TITLE II: ENHANCED SURVEILLANCE PROCEDURES

Section 201: Authority to Intercept Wire, Oral, and Electronic 

Communications Relating to Terrorism—Adds terrorism offenses to 

the list of predicates for obtaining title III wiretaps. 

Section 202: Authority to Intercept Wire, Oral, and Electronic 

Communications Relating to Computer Fraud and Abuse Offenses—

Adds computer fraud and abuse offenses to the list of predicates for 

obtaining title III wiretaps. 

Section 203: Authority to Share Criminal Investigative Information—Allows intelligence information obtained in grand jury proceedings to be shared with any law enforcement, intelligence, immigration, or national security personnel as long as notice is given 

to the court after the disclosure. Recipient can only use information 

in conduct of their duties subject to disclosure limitations in current law. Intelligence information obtained from wiretaps can be 

shared with law enforcement, intelligence, immigration, or national 

security personnel. Recipients can use the information only in the 

conduct of their duties and are subject to the limitations in current 

law of unauthorized disclosure of wiretap information. Attorney 

General must establish procedures for the release of this information in the case of a U.S. person. Intelligence information obtained 

in intelligence operations can be disclosed to intelligence personnel 

in performance of their duties. 

Section 204: Clarification of Intelligence Exceptions from Limitations on Interception and Disclosure of Wire, Oral, and Electronic 

Communications—Explicitly carves out foreign intelligence surveillance operations from the protections of ECPA. 

Section 205: Employment of Translators by the FBI—Authorizes 

the FBI to expedite employment of translators. 

Section 206: Roving Surveillance Authority under FISA—Expands FISA court orders to allow ‘‘roving’’ surveillance in manner 

similar to Title III wiretaps. 

Section 207: Duration of FISA Surveillance of Non-United States 

Persons who are Agents of a Foreign Power—Currently, the duration for a FISA surveillance may initially be ordered for no longer 

than 90 days but later can be extended to one year. This section 

changes the initial period for electronic surveillance from 90 to 120 

days and extensions from 90 days to one year; and for searches 

from 45 to 90 days. 

Section 208: Designation of Judges—Increases number of FISA 

judges from 7 to 11 and requires that at least 3 judges reside within 20 miles of the District of Columbia. 

Section 209: Seizure of Voice Mail Pursuant to Warrants—Provides that voice mails can be accessed by the government with a 

court order in the same way e-mails currently can be accessed and 

495

authorizes nationwide service with a single search warrant for 

voice mails. 

Section 210: Scope of Subpoenas for Records of Electronic Communications—Broadens the types of records that law enforcement 

can subpoena from electronic communications service providers by 

requiring providers to disclose the means and source of payment, 

including any bank account or credit card numbers, pursuant to a 

subpoena. 

Section 211: Clarification of Scope—Broadens the scope of the 

subscriber records disclosure statutes to treat cable companies that 

provide Internet service the same as other Internet Service Providers and telephone companies. 

Section 212: Emergency Disclosure of Electronic Communications—Permits Internet Service Providers to disclose voluntarily 

stored electronic communications of subscribers in the event immediate danger or death or serious bodily injury to a person requires 

such disclosure. Also otherwise allows law enforcement to compel 

disclosure to third parties using a court order or a search warrant. 

Section 213: Authority for Delaying Notice of Execution of a Warrant—Broadens authority of law enforcement to delay notification 

of search warrants in criminal investigation if prior notification 

would have an adverse result and if notification is given a reasonable period after the search. Based on codification of Second Circuit 

decision. 

Section 214: Pen Register and Trap and Trace Authority under 

FISA—Currently, when the Attorney General or a designated attorney for the government applies for a pen register or trap and 

trace device under FISA, the application must include a certification by the applicant that (1) the information obtained would be 

relevant to an on-going intelligence investigation, and (2) the information demonstrates that the phone covered was used in communication with someone involved in terrorism or intelligence activities that may violate U.S. criminal law or with a foreign power or 

its agent whose communication is believed to concern terrorism or 

intelligence activities that could violate U.S. criminal laws. The 

conference report deletes second prong, but limits the use of these 

tools to protection against international terrorism or clandestine intelligence activities and provide that the use of these tools may not 

be based solely on First Amendment activities. 

Section 215: Access to Records and Other Items under FISA—(1) 

requires a FISA court order to obtain business records; (2) limits 

the use of this authority to investigations to protect against international terrorism or clandestine intelligence activities; and (3) provides that investigations of U.S. persons may not be based solely 

on First Amendment activities. 

Section 216: Authorities Relating to the Use of Pen Register and 

Trap and Trace Devices—Extends the pen/trap provisions so they 

apply not just to telephone communications but also to Internet 

traffic, so long as they exclude ‘‘content.’’ Excludes ISP’s from liability, gives Federal courts the authority to grant orders that are 

valid anywhere in the United States instead of just their own jurisdictions, and provides for a report to Congress on this ‘‘Carnivore’’ 

device. 

496

Section 217: Interception of Computer Trespasser Communications—Allows persons ‘‘acting under color of law’’ to intercept communications if the owner of a computer authorizes it, and the person acting under color of law is acting pursuant to a lawful investigation. Section 815 also excludes service provider subscribers 

from definition of trespasser, limits interception authority to only 

those communications through the computer in question. 

Section 218: Foreign Intelligence Information—Permits FISA surveillance and search requests if they are for a ‘‘significant’’ intelligence gathering purpose (rather than ‘‘the’’ purpose under current 

law). 

Section 219: Single Jurisdiction Search Warrants for Terrorism—

Permits Federal judges to issue search warrants having nationwide 

effect for investigations involving terrorism. 

Section 220: Nationwide Service of Search Warrants for Electronic Evidence—Permits a single court having jurisdiction over the 

offense to issue a search warrant for e-mail that would be valid in 

anywhere in the United States. 

Section 221: Trade Sanctions (IR Committee)—Adds Taliban to 

list of entities potentially subject to sanctions and retains congressional oversight in current law. 

Section 222: Assistance to Law Enforcement Agencies—Prohibits 

technology mandates on entities to comply with this Act. Provides 

for cost reimbursement of entities assisting law enforcement with 

title III pen trap orders. 

Section 223: Civil Liability for Certain Unauthorized Disclosures—Increases civil liability for unauthorized disclosure of pen 

trap, wiretap, stored communications or FISA information. Also requires administrative discipline of officials who engage in such unauthorized disclosures. 

Section 224: Sunset—201, 202, 203(b), 204, 206, 207, 209, 212, 

214, 215, 217, 218, 220, will sunset in four years—at the end December 31, 2005. Conference agreement to narrow those investigations that survive sunset to particular investigations based on offenses occurring prior to sunset. 

Section 225: Immunity for Compliance with FISA Wiretap—Provides immunity for civil liability from subscribers, tenants, etc. for 

entities that comply with FISA wiretap orders—dropped Administration proposal allowing FBI to use wiretap information on U.S. 

citizens it obtained overseas in violation of the Fourth Amendment. 

TITLE III: FINANCIAL INFRASTRUCTURE

Other provisions to be supplied by Financial Services conference. 

Provisions below from House Judiciary Committee bill. 

Section 301: Laundering The Proceeds of Terrorism—Expands the 

scope of predicate offenses for laundering the proceeds of terrorism 

to include ‘‘providing material support or resources to terrorist organizations,’’ as that crime is defined in 18 U.S.C. § 2339B of the 

criminal code. 

Section 302: Extraterritorial Jurisdiction [International Relations 

Committee]—Applies the financial crimes prohibitions to conduct 

committed abroad in situations where the tools or proceeds of the 

offense pass through or are in the United States. 

497

TITLE IV: PROTECTING THE BORDER

SUBTITLE A—PROTECTING THE NORTHERN BORDER

Section 401: Ensuring Adequate Personnel on the Northern Border: Authorizes the waiver of any FTE cap on personnel assigned 

to the INS to address the national security on the Northern Border. 

Section 402: Northern Border Personnel: Authorizes the appropriation of funds necessary to triple the number of Border Patrol, 

INS and Customs Service personnel in each State along the northern border. The bill also authorizes $50 million each to the INS 

and Customs Services for purposes of making improvements in 

technology for monitoring the northern border and acquiring additional equipment at the northern border. 

Section 403: Requiring Sharing by the Federal Bureau of Investigation of Certain Criminal Record Extracts with Other Federal 

Agencies in Order to Enhance Border Security: Requires the Justice 

Department and FBI to provide the State Department and INS information contained in its National Crime Information Center files 

to permit INS and State to better determine whether a visa applicant has a criminal history record. 

Section 404: Limited Authority to Pay Overtime: Strikes certain 

prohibitions on the paying of overtime to INS employees. 

Section 405: Report on the Integrated Automated Fingerprint 

Identification System for Points of Entry and Overseas Consular 

Posts: Requires the Justice Department to report to Congress on 

the feasibility of enhancing the FBI’s Integrated Automated Fingerprint Identification System and other identification systems. 

SUBTITLE B: ENHANCED IMMIGRATION PROVISIONS

Section 411: Definitions Relating to Terrorism: Broadens the terrorism ground of inadmissibility to include (a) any representative 

of a political or social group that publicly endorses terrorist activity 

in the United States, (b) a person who uses his position of prominence within a country to endorse terrorist activity or persuade 

others to support terrorist activity, (c) the spouses and children of 

persons engaged in terrorism, and (d) any other person the Secretary of State or Attorney General determines has been associated 

with a terrorist organization and who intends to engage in activities that could endanger the welfare, safety, or security of the 

United States. This bill broadens the definition of ‘‘terrorist activity’’ to include the use, not only of explosives and firearms, but 

other dangerous devices as well. Further, it broadens the definition 

of a terrorist ‘‘engaging in a terrorist activity’’ to include anyone 

who affords material support to an organization that the individual 

knows or should know is a terrorist organization, regardless of 

whether or not the purported purpose for the support is related to 

terrorism. It also broadens the types of organizations that may be 

designated or redesignated as a foreign terrorist organization by 

the Secretary of State to comport with definitions of terrorism 

found elsewhere in the law. 

Section 412: Changes in Designation of Foreign Terrorist Organizations: Expands the ability of the Attorney General to mandatorily 

detain those aliens that he certifies may pose a threat to national 

security, pending the outcome of criminal or removal proceedings. 

498

Section 413: Multilateral Cooperation Against Terrorists: Enhances the Government’s ability to combat terrorism and crime 

worldwide by providing new exceptions to the laws regarding disclosure of information from visa records. The bill grants the Secretary of State discretion to provide such information to foreign officials on a case-by-case basis for the purpose of fighting international terrorism or other crimes. It also allows the Secretary to 

provide countries with which he negotiates specific agreements to 

have more general access to information from the State Department’s lookout databases where the country will use such information only to deny visas to persons seeking to enter its territory. 

Section 414: Visa Integrity and Security: Includes a sense of the 

Congress that in light of the terrorist attacks, the Attorney General 

must expedite the implementation of the integrated entry and exit 

data system authorized by Congress in 1996. 

Section 415: Participation of Office of Homeland Security on 

Entry Task Force: Includes the Office of Homeland Security in the 

development and implementation of the integrated entry and exit 

data system authorized by Congress in 1996. 

Section 416: Foreign Student Monitoring Program: Requires the 

Attorney General to fully implement and expand foreign student 

monitoring program authorized by Congress in 1996. 

Section 417: Machine Readable Passports: Requires the Secretary 

of State to perform annual audits and report to Congress on the 

implementation of the machine-readable passport program. 

Section 418: Prevention of Consulate Shopping: Requires the Secretary of State to review how consular officers issue visas to determine if consular shopping is a problem. 

SUBTITLE C: PRESERVATION OF IMMIGRATION BENEFITS FOR VICTIMS

OF TERRORISM

Adds new subtitle (sections 421–428) to the Administration’s proposal to preserve the immigration benefits of the victims of the 

September 11th terrorist attacks and their family members. For 

some families, spouses and children may lose their immigration 

status due to the death or serious injury of a family member. These 

family members are facing deportation because they are out of status: they no longer qualify for their current immigration status or 

are no longer eligible to complete the application process because 

their loved one was killed or injured in the September 11 terrorist 

attack. Others are threatened with the loss of their immigration 

status, through no fault of their own, due to the disruption of communications and transportation that has resulted directly from the 

terrorist attacks. Because of these disruptions, people have been 

and will be unable to meet important deadlines, which will mean 

the loss of eligibility for certain benefits and the inability to maintain lawful status, unless the law is changed. The bill: 

• Creates a new special immigrant status for people who 

were in the process of securing permanent residence through 

a family member who died, was disabled, or lost employment 

as a result of the terrorist activities of September 11, 2001; 

• Provides a temporary extension of status to people who are 

present in the United States on a ‘‘derivative status’’ (the 

499

spouse or minor child) of a non-immigrant who was killed or 

injured on September 11, 2001; 

• Provides remedies for people who will be adversely affected 

or will lose their right to apply for benefits because of their inability to meet certain deadlines through no fault of their own 

and as a result of the September 11, 2001 terrorist attack (visa 

waiver, diversity lottery, advance parole and voluntary departure); 

• Provides immigration relief to the widows/widowers and 

orphan children of citizens and legal permanent residents who 

were killed in the September 11 attacks by allowing applications for permanent resident status to be adjudicated; 

• Prevents children from aging out of eligibility for immigration benefits were the delay the result of the September 11 attacks; 

• Provides for temporary administrative relief to allow the 

family of people who were killed or seriously injured in the terrorist attacks who are not otherwise covered by this subtitle; 

and 

• Prohibits any benefits from being provided to anyone culpable for the terrorist attacks on September 11 or any family 

member of such person. 

TITLE V: REMOVING OBSTACLES TO INVESTIGATING TERRORISM

Section 501: Attorney General’s Authority to Pay Rewards—Ensures non-terrorism rewards are subject to budgetary caps. 

Section 502: Secretary of State Rewards (IR Committee)—Amends 

the Department of State’s reward authority so that rewards may 

be offered for the identification or location of the leaders of a terrorist organization, increases the maximum amount of an award 

from $5 million to $10 million, and allows the Secretary to further 

increase a reward to up to $25 million if the Secretary determines 

that offering the payment of such additional amount is important 

to the national interest. Also provides a sense of Congress that the 

Secretary should offer a $25 million award for Osama bin Laden 

and other leaders of the September 11th attack. Broadens the AG’s 

authority to offer rewards without caps for information related to 

terrorism. 

Section 503: DNA Identification of Terrorists—Requires persons 

convicted of terrorism offenses also to submit to DNA samples. 

Section 504: Coordination with Law Enforcement—Allows Federal law enforcement conducting electronic surveillance or physical 

searches to consult with other Federal law enforcement officers to 

protect against hostile acts, terrorism, or intelligence activities. 

Section 505: Miscellaneous National-Security Authorities—In 

counterintelligence investigations, the Director of the FBI or his 

designee, not lower than the Deputy Assistant Director, may request telephone, financial, or credit records of an individual if he 

certifies that the information sought is (1) relevant to an authorized foreign counterintelligence investigation, and (2) that there are 

‘‘specific and articulable’’ facts finding that the person/entity from 

whom the information is sought is a foreign power or its agent. 

500

Section 506: Extension of Secret Service Jurisdiction—Allows Secret Service to coordinate with Justice Department to investigate 

offenses against U.S. government computers. 

Section 507: Disclosure of Educational Records (Education and 

Workforce)—Allows the release of student education records if it is 

determined by the Attorney General or Secretary of Education (or 

their designee) that doing so could reasonably be expected to assist 

in investigating or preventing a federal terrorism offense or domestic or international terrorism. 

Section 508: Disclosure of NC Information—Same as 507, but 

covers surveys conducted by the Education Department. 

TITLE VI: PROVIDING FOR VICTIMS AND PUBLIC SAFETY OFFICERS SUBTITLE A: AID TO FAMILIES OF PUBLIC SAFETY OFFICERS

Section 611: Expedited Payment for Public Safety Officers Involved in the Prevention, Investigation, Rescue, or Recovery Efforts 

Related to a Terrorist Attack—Expedites payment of benefits to victims, their families, and public safety officers. 

Section 612: Technical Correction with Respect to Expedited Payments for Heroic Public Safety Officers—Makes technical correction 

to Nadler bill, which passed into law in mid-September 2001. 

Section 613: Public Safety Officer Benefit Program Payment Increase.—Increases public safety officer benefits from $100,000 to $250,000. 

Section 614: Office of Justice Programs—Adds to the list of programs within OJP. 

SUBTITLE B: AMENDMENTS TO THE VICTIMS OF CRIME ACT OF 1984

This subtitle makes changes to the administration of—and authorizes additional funding for—the crime victims fund. 

TITLE VII: INCREASED INFORMATION SHARING

This Subtitle expands regional information sharing to facilitate 

Federal-state-local law enforcement responses to terrorism. 

TITLE VIII: STRENGTHENING THE CRIMINAL LAWS AGAINST TERRORISM

Section 801: Terrorist Attacks and Other Acts of Violence Against 

Mass Transportation Systems—Establishes a new Federal offense 

for attacking a mass transportation system. 

Section 802: Definition of Domestic Terrorism—Creates a definition for ‘‘domestic terrorism’’ for the limited purpose of providing 

investigative authorities (i.e., court orders, warrants, etc.) for acts 

of terrorism within the territorial jurisdiction of the United States. 

Such offenses are those that are ‘‘(1) dangerous to human life and 

violate the criminal laws of the United States or any state; and (2) 

appear to be intended (or have the effect)—to intimidate a civilian 

population; influence government policy by intimidation or coercion; or affect government conduct by mass destruction, assassination, or kidnaping (or a threat of).’’ 

Section 803: Prohibition Against Harboring Terrorists—Makes it 

an offense when someone harbors or conceals another they know or 

should have known had engaged in or was about to engage in federal terrorism offenses. 

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Section 804: Jurisdiction over Crimes Committed at U.S. Facilities Abroad—Extends the special and maritime criminal jurisdiction of the United States to offenses committed abroad by or 

against U.S. nationals. 

Section 805: Material Support for Terrorism—Permits prosecution under current crime of material support for terrorism to occur 

in ‘‘any Federal judicial district in which the underlying offense 

was committed, or in any other Federal judicial district as provided 

by law,’’ and includes the provision of ‘‘monetary instruments’’ as 

‘‘material support.’’ 

Section 806: Assets of Terrorist Organizations—Extends forfeiture 

and confiscation authority to ‘‘all assets, foreign or domestic’’ that 

are owned or controlled by ‘‘any person, entity or organization engaged in planning or perpetuating any act of domestic terrorism or 

international terrorism against the United States, citizens or residents . . . or their property.’’ 

Section 807: Technical Clarification Relating to Provision of Material Support to Terrorism—Makes clear that whoever provides 

material support or resources to terrorists or foreign terrorist organizations may be subject to criminal liability under §2339A or 

§2339B. Moreover, proposed section 407 of the Administration’s 

legislation seemed to gut the congressional approval requirement 

and confer upon the President the independent power to impose agricultural and medical sanctions on terrorists ‘‘wherever they are 

located.’’ 

Section 808: Definition of Federal Crime of Terrorism—Adds new 

highly egregious offenses to existing definition of ‘‘Federal crime of 

terrorism,’’ thereby ensuring that ‘‘coercing government’’ is an element of the offense along with other predicates. Also, added predicates are narrowed to those being the most egregious. 

Section 809: No Statute of Limitation for Prosecuting Terrorism 

Offenses—Provides that terrorism offenses may be prosecuted without time limitations, however, more focused list of offenses will continue to carry an 8–year statute of limitations except where they 

resulted in, or created a risk of, death or serious bodily injury. 

Section 810: Alternative Maximum Penalties for Terrorism 

Crimes—Provides alternative maximum prison terms for terrorism 

crimes, including imprisonment for any term of years or for life. 

Section 811: Penalties for Terrorist Conspiracies—Adds a new 

section to the terrorism chapter of the criminal code to provide that 

the maximum penalties for conspiracies to commit terrorism are 

equal to the maximum penalties authorized for the objects of such 

conspiracies (similar approach is found in the criminal code with 

respect to drug crimes). 

Section 812: Post-Release Supervision of Terrorists—Authorizes 

longer supervision periods, including lifetime supervision, for persons convicted of terrorism crimes (a similar approach is found in 

the drug crimes statute, which imposes a term of supervised release of at least 10 years, instead of 5 years, in cases where there 

is a prior conviction). 

Section 813: Inclusion of Acts of Terrorism Crimes as Racketeering Activity—Provides that any terrorism-related crimes can be 

RICO predicates. 

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Section 814: Deterrence and Prevention of Cyberterrorism—Alters 

damage and civil liability triggers for computer hacking offenses. 

Also eliminates mandatory minimums in current law for computer 

hacking offenses. 

Section 815: Additional Defense to Civil Actions Relating to Preserving Records in Response to Government Requests—Eliminates 

any ISP liability to customers for turning customer records over to 

law enforcement pursuant to any statutory authorization. 

Section 816: Development and Support of Cybersecurity Forensic 

Capabilities—Requires the Attorney General to establish regional 

computer forensic laboratories. 

Section 817: Biological Weapons—Makes it an offense for a person to possess a biological weapon that is not reasonably justified, 

under the circumstances, by a prophylactic, protective, bona fide research, or other peaceful purpose. 

TITLE IX: IMPROVED INTELLIGENCE

Section 901: Responsibilities of Director of Central Intelligence 

Regarding Foreign Intelligence Collected under FISA—Authorizes 

the Director of the CIA to establish requirements and priorities for 

collecting foreign intelligence, and to provide assistance to the Attorney General in ensuring that information derived from electronic surveillance or physical searches is properly disseminated. 

The DCI cannot direct, manage, or undertake electronic surveillance or physical search operations unless otherwise authorized by 

statute or executive order. 

Section 902: Inclusion of International Terrorist Activities within 

Scope of Foreign Intelligence under the National Security Act—Includes international terrorist activities within the scope of foreign 

intelligence under the National Security Act. 

Section 903: Sense of Congress—Sense of Congress on the establishment of intelligence relationships to acquire information on terrorists. 

Section 904: Temporary Authority to Defer Submittal to Congress 

of Reports on Intelligence and Intelligence-Related Matters—Grants 

DCI temporary authority to delay submittal of reports to Congress 

on intelligence matters. 

Section 905: Disclosure to Director of Central Intelligence of Foreign Intelligence-Related Information with Respect to Criminal Investigations—Requires the Attorney General to disclose to the CIA 

Director foreign intelligence acquired by the Justice Department in 

the course of a criminal investigation, except when disclosing such 

information would jeopardize an ongoing investigation. 

Section 906: Foreign Terrorist Asset Tracking Center—Requires 

the DCI, the AG, and the Secretary of the Treasury to report to 

Congress by February 1, 2002, on the desirability of a Foreign 

Asset Tracking Center to track terrorist assets. 

Section 907: National Virtual Translation Center—Requires the 

DCI and the FBI to report to Congress on the establishment of a 

National Virtual Translation Center. 

Section 908: Training of Government Officials Regarding Identification and Use of Foreign Intelligence—Requires DCI and AG to 

establish program to train officials to handle foreign intelligence information. 

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TITLE X: MISCELLANEOUS

Section 1001: Review of the Department of Justice—Requires DOJ 

Inspector General to designate one official to receive complaints of 

civil liberties and civil rights abuses and to report such abuses to 

Congress semi-annually.

APPENDIX B, SUMMARY OF 16 EXPIRING PROVISIONS

Below is a summary of each of the sixteen sections set to expire 

this year pursuant to section 224 (the sunset does not apply to ongoing investigations), an explanation of how each has been used, 

and any concerns related to such authorities: 

Sec. 201—Authority to intercept wire, oral, and electronic communications relating to terrorism 

This section adds terrorism offenses to the list of predicates for 

title III wiretaps. Title III is used for criminal investigations. 

Sec. 202—Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses 

This section adds computer fraud and abuse offenses as predicates for title III wiretaps. 

Sec. 203(b) and (d)—Authority to share electronic, wire, and oral 

interception information; Authority to share foreign intelligence 

information 

Section 203(b) allows the government to share information from 

criminal wiretaps and electronic surveillance with federal law enforcement, immigration, and national security personnel as long as 

notice is given to the court after the disclosure. The recipient can 

use information only in the conduct of their duties subject to disclosure limitations in current law. 

Section 203(d) allows the FBI to share intelligence information 

with other federal law enforcement, immigration, and national security personnel. The Attorney General must establish procedures 

for the release of this information in the case of a U.S. person. 

Sec. 204—Clarification of intelligence exceptions from limitations on 

interception and disclosure of wire, oral, and electronic communications 

This section carves out foreign intelligence surveillance operations from the Electronic Communications Privacy Act, which imposes limits on the placement of wiretaps. 

Sec. 206—Roving surveillance authority under the Foreign Intelligence Surveillance Act 

This section allows the FBI to use roving wiretaps under FISA. 

This means that the FBI can obtain a single court order to tap any 

phone they believe a foreign agent would use, instead of getting 

separate court orders for each phone. The government need not 

name the target. 

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129 USA Patriot Act: Sunsets Reports, April 2005, Department of Justice. 130See Reports From the Field: The USA Patriot Act at Work, U.S. Department of Justice, 

July 2004. 131 A pen register is used to record the phone numbers that are dialed from a target phone. 

A trap-and-trace is used to record the phone numbers of the incoming calls to a target phone. 

Sec. 207—Duration of FISA surveillance of non-United States persons who are agents of a foreign power 

This section lets the FBI obtain FISA search and surveillance orders for longer periods of time than they could have prior to the 

PATRIOT Act: 

1. Wiretap orders relating to an agent of foreign power increased 

from 90 days to 120 days, and subsequent extensions were increased from 90 days to a year; 

2. Physical searches of non-U.S. persons who are agents of a foreign power increased from 45 days to 120 days, and subsequent extensions were left at one year intervals; 

3. All other physical searches—including those against U.S. persons—were extended from 45 to 90 days, and subsequent extensions were left at one year intervals. 

These can be compared to wiretaps in the criminal context that 

are authorized and extended for only 30 days at a time.129

Sec. 209—Seizure of voice mail messages pursuant to warrants 

This section provides that the FBI can access voice mails the 

same way it accesses e-mails and authorizes nationwide service 

with a single search warrant. 

Sec. 212—Emergency Disclosures of Communications held by Phone 

Companies and Internet Service Providers 

This section permits telephone companies and Internet Service 

Providers (ISPs) to disclose to the government, without penalty, 

customer communications and records if they think there is a danger of death or serious injury. This section precludes liability regardless of whether the company innocently stumbles on the information itself and approaches the government, or whether law enforcement initiates the disclosure itself. Because this section directly amended Title 18 of the U.S. Code, it can be used in any 

run-of-the-mill criminal investigation and has no ties to terrorism 

cases. In fact, all of the examples cited by the Justice Department 

are non-terror cases, including a bomb threat against a school, numerous kidnaping cases, and computer hacking threats.130

Sec. 214—Pen register and trap and trace authority under FISA 

This section made it easier for the FBI to get a pen register or 

trap-and-trace under FISA.131 The FBI needs to prove the order is 

needed to obtain foreign intelligence information not concerning a 

U.S. person or to protect against international terrorism or clandestine intelligence activities. Prior to the PATRIOT Act, the FBI 

needed to establish that the telephone line in question had been 

used or was about to be used in connection with terrorism or a 

crime; this requirement was deleted. Before section 214, the government had to prove that the target was an agent of a foreign 

power; now, they need only prove that the information is related 

to a terror or intelligence investigation. This extremely broad qualiVerDate jul 14 2003 09:52 Jul 20, 2005 Jkt 022475 PO 00000 Frm 00508 Fmt 6604 Sfmt 6602 E:\HR\OC\HR174P1.002 HR174P1
505

132See, for example, Electronic Privacy Information Center ‘‘The USA PATRIOT Act,’’ at 

www.epic.org/privacy/terrorism/usapatriot/. 133 Id. at 24. 

fication of a FISA pen register/trap and trace order has led many 

groups to oppose it.132

Sec. 215—Access to records and other items under the Foreign Intelligence Surveillance Act 

This section expanded the FBI’s ability to obtain business records 

under FISA. Before the Act, the government could seek records 

only from hotels/motels, storage facilities and car rental companies; 

now, it can seek ‘‘any tangible thing’’ from any business. To obtain 

such records, the FBI Director (or his designee) must seek an order 

from the Foreign Intelligence Surveillance Court and specify that 

the records are sought for foreign intelligence information not concerning a U.S. person or are sought to protect against international 

terrorism or intelligence gathering. Upon receipt of such a request, 

the court must grant the order. Recipients are prohibited from disclosing to anyone but their attorneys that they have received a section 215 request. 

Sec. 217—Interception of computer trespasser communications 

This section allows persons ‘‘acting under color of law’’ to intercept computer communications if a computer owner authorizes it, 

and if the person acting under color of law is acting pursuant to 

a lawful investigation. 

Sec. 218—Foreign intelligence information 

This section says the FBI needs to aver that a ‘‘significant’’ purpose of a FISA order request is to gather foreign intelligence; before the Act, the FBI needed to show that obtaining foreign intelligence was the ‘‘primary purpose’’ of the order. 

The effect of letting the status quo continue is that evidence obtained from a FISA warrant under FISA’s statutory ‘‘probable 

cause’’ standard can be given to non-terror criminal prosecutors 

who are governed by the higher standard of 4th Amendment probable cause. In fact, the lower standard FISA warrant can be sought 

for criminal prosecution purposes, as long as terrorism or national 

intelligence is some small part of the reason. The long-standing 

policy of not letting criminal prosecutors direct intelligence investigations has been vitiated. 

Sec. 220—Nationwide service of search warrants for electronic evidence 

This section allows a single court to issue a search warrant for 

electronic evidence that is valid nationally. According to the Department’s May 13, 2003 letter, it has used this authority to track 

a fugitive and to track a hacker who stole trade secrets from a company and then extorted money from it.133

Sec. 223—Civil liability for certain unauthorized disclosures 

This section was included by Rep. Barney Frank to increase civil 

liability for unauthorized disclosure of pen/trap, wiretap, e-mail, or 

FISA information. In its May 13, 2003 letter to the Committee, the 

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Department stated there had been no administrative disciplinary 

proceedings or civil actions under section 223. 

Sec. 225—Immunity for compliance with FISA wiretap 

This section immunizes private parties who comply with FISA 

court orders or ‘‘requests for emergency assistance’’ otherwise authorized under FISA. Immunity already existed for criminal cases, 

and this section intended to provide the same for people who cooperated with officials in terror or intelligence cases. 

‘‘Lone Wolves’’ as Agents of a Foreign Power 

Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004 created the so-called ‘‘lone wolf’’ provision of FISA 

redefining the ‘‘agent of a foreign power’’ to include those who ‘‘engage in international terrorism or activities in preparation therefore.’’ In other words, agents of a foreign power no longer need to 

have any connection to a foreign power. This is limited to non-U.S. 

persons, although a leaked ‘‘PATRIOT II’’ bill authored by the Justice Department would have expanded the lone wolf provision to 

cover U.S. persons as well. 

The purpose of FISA always has been espionage and terrorism 

surveillance against foreign governments, foreign groups, or individuals associated with such governments or groups. Section 6001 

expanded FISA to include any single person who engages in a violent act that (1) transcends national boundaries and (2) is intended 

to coerce the government or a civilian population. 

When this provision passed committee in the markup of H.R. 10, 

it had a rebuttable presumption that a FISA judge could invoke 

when the target had no ties to foreign governments whatsoever. 

That provision was removed before the bill went to the floor.

JOHN CONYERS, Jr. 

ROBERT C. SCOTT. MAXINE WATERS. 

WILLIAM D. DELAHUNT. 

ANTHONY D. WEINER. 

LINDA T. SANCHEZ ́. 

DEBBIE WASSERMAN SCHULTZ. 

JERROLD NADLER. 

MELVIN L. WATT. 

SHEILA JACKSON LEE. 

MARTIN T. MEEHAN. 

ROBERT WEXLER. 

CHRIS VAN HOLLEN.

Æ