Responses to Representatives' justifications for voting against July 8, 2004, Sanders-Otter-Conyers-Paul-Nadler amendment to Commerce, Justice, State Appropriations bill and for changing votes from "Yes" to "No":
1. "This is not the place to debate this bill. It should have had a hearing in the House Judiciary Committee." (Wolf, Smith-TX, Goss) "Since hearings have not been held...I strongly urge members...to vote down this amendment." (Wolf)
Congressman Sanders has asked many times for a Judiciary Committee hearing, but Committee Chairman James Sensenbrenner has refused to grant one. HR 1157, on which the proposed amendment was based, has 147 cosponsors. Such strong support for a bill should warrant a hearing. After all, HR 3179, with only one cosponsor, warranted a Judiciary Committee hearing.
2a. Without Section 215, the FBI's only option would to get a Grand Jury subpoena, which would tip off the terrorists. (Shays, Coble, Hostettler-see 2b): "Should terrorists be able to use taxpayer-funded public library facilities to plot a major attack without fear they will be investigated by the FBI?" (Coble) "The only alternative left if we see this amendment pass is that we would then have to go before a grand jury....And we are going to tie [the intelligence community's] hands behind their backs...and say we have to let a terrorist know first before we break into a terrorist cell." (Shays) "The Sanders amendment ... would make libraries and bookstores a sanctuary for terrorists." (Smith, TX)
A Grand Jury could issue the subpoena secretly. However, a better option that has always been available to the FBI is to get a warrant from a Magistrate Judge. Such a warrant can be issued within 24 hours. Unlike Section 215, this option requires a showing of "probable cause" of a crime or criminal intent.
2b. If the amendment passes, "we can get library records for run-of-the-mill criminal investigations [he mentions"cattle rustling"] with a grand jury subpoena ... [but it] would preclude the government from getting the identical library records ... to protect national security interests of the United States." (Hostettler)
Not true. The amendment would have prevented the FBI from using FISA for library and bookstore records, but they could still use both grand jury subpoenas and warrants from a criminal court to gather information on suspected terrorists and cattle rustlers.
3. I changed my vote to "no" on the basis of a July 8 letter from William Moschella, Assistant Attorney General, to Judiciary Committee Chairman James Sensenbrenner (some of the ten representatives who switched their votes).
The hastily drafted letter (see the following text) does not reveal whether Section 215 has ever been used or whether the message from the alleged member of a terrorist group had anything to do with a planned attack.
In anticipation of the U.S. House of Representive's [sic] consideration of an amendment that would prevent the Justice Department from obtaining records from public libraries and bookstores under section 215 of the USA PATRIOT Act, your staff has recently inquired about whether terrorists have ever utilized public library facilities to communicate with others about committing acts of terrorism. The short answer is "Yes."
You should know we have confirmed that, as recently as this past winter and spring, a member of a terrorist group closely affiliated with al Qaeda used internet services provided by a public library. This terrorist used the library's computer to communicate with his confederates. Beyond this, we are unable to comment.
We hope this information is useful to you and your colleagues as you consider amendments relating to the USA PATRIOT Act.
4. "Obviously the PATRIOT Act suspends some Constitutional liberties." (Rep. Dan Burton, R-IL)
There's a term for laws that suspend Constitutional rights: "Unconstitutional."
There has been no vote by Congress to annul the U.S. Constitution. All laws of the United States must comply with the Constitution, and all members of Congress take an oath of office to support the Constitution. See Article 6, Clauses 2 and 3:
Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
5. "The FBI tells me that the PATRIOT Act has been very beneficial." (Rep. Dan Burton, R-IL)
This is meaningless. It does not say that the FBI has used the USA PATRIOT Act to prosecute terrorists, to identify terrorists, or to prevent terrorist attacks. For example, the DOJ's July Report From the Field praising the USA PATRIOT Act is full of detail about largely nonterrorist uses of noncontroversial USA PATRIOT Act sections. It does not contain a single mention of the use of Section 215.
6. "The PATRIOT Act expires in the year 2005, ... so we will have a chance to review it again." (Rep. Dan Burton, R-IL)
We know no members of Congress read the USA PATRIOT Act before voting in favor of it, but what is their excuse for spouting misinformation about it now, almost three years later? See list below, and note that only a select group of sections in Title 2 need Congress's reauthorization to stay in effect after December 31, 2005.
A. Title 2 sections that expire at the end of 2005 (per USA PATRIOT Act Section 224) unless Congress reauthorizes them:
Sec. 201. Authority To Intercept Wire, Oral, And Electronic Communications
Relating To Terrorism.
Sec. 202. Authority To Intercept Wire, Oral, And Electronic Communications
Relating To Computer Fraud And Abuse Offenses.
Sec. 203(b), (d). Authority To Share Criminal Investigative Information.
Sec. 206. Roving Surveillance Authority Under The Foreign Intelligence
Surveillance Act Of 1978.
Sec. 207. Duration Of FISA Surveillance Of Non-United States Persons
Who Are Agents Of A Foreign Power.
Sec. 209. Seizure Of Voice-Mail Messages Pursuant To Warrants.
Sec. 212. Emergency Disclosure Of Electronic Communications To Protect
Life And Limb.
Sec. 214. Pen Register And Trap And Trace Authority Under Fisa.
Sec. 215. Access To Records And Other Items Under The Foreign Intelligence
Surveillance Act.
Sec. 217. Interception Of Computer Trespasser Communications.
Sec. 218. Foreign Intelligence Information.
Sec. 220. Nationwide Service Of Search Warrants For Electronic Evidence.
Sec. 223. Civil Liability For Certain Unauthorized Disclosures.
B. Title 2 sections that do not expire:
Sec. 203(a),(c): Grand jury sharing of info
Sec. 208. Designation Of Judges: increases number of FISA judges
Sec. 210: ECPA Scope of Subpoenas for records of electronic communications--
clearly allowing e-mails routing information
Sec. 211: ECPA Clarification of scope: privacy provisions of Cable
Act overridden for communication services offered by cable providers
(but not for records relating to cable viewing)
Sec. 213: Sneak & Peek: delay notification of execution of a warrant
Sec. 216: Modification of pen/trap authorities: (in original PATRIOT,
would have sunsetted)
Sec. 219: Single jurisdiction search warrants for terrorism
Sec. 222 Assistance to law enforcement
Sec. 225. Immunity For Compliance With Fisa Wiretap. Can continue
all investigations active at the time of expiration
7. "On September 18 of last year, the number of times ... that the Justice Department had utilized section 215 of the USA PATRIOT Act ... was zero." (Coble)
If it wasn't used in nearly two years, then why is it needed?
8. "There was a wall that needed to be taken down; ... the PATRIOT Act helped accomplish this." (Goss)
The USA PATRIOT Act goes much farther than dismantling that cultural wall.
9. "We have not had any specific abuse complaints brought to our attention." (Goss)
Goss did provide the toll-free number for the House Permanent Select Committee on Intelligence referenced in the film Fahrenheit 9/11: 1-877-858-9040. He invited those who "have experienced a specific problem with the PATRIOT Act" to call the committee. As to his assertion, under Section 215, victims of a fishing expedition would not know to complain, especially with a gag order. Furthermore, since Section 215 makes the fishing expeditions legal, they would not count as abuse. None of Goss's remarks related to Section 215.
10. Section 215 "do not apply to ordinary citizens engaging in ordinary criminal activity." (Smith, TX)
Why not? It applies to ordinary citizens who are not engaged in any wrongdoing.
11. "Under the PATRIOT Act, you have to go to the Justice Department, you have to go to FISA, and then you have to get a court order." (Shays)
If he is referring to Section 215, the FBI is part of the Justice Department, and so there is only one step: To get a FISA warrant from the Foreign Intelligence Surveillance Court. No additional court order is needed.
12. "You need probable cause under the PATRIOT Act." (Shays)
Not true. See the form used to apply to FISA for a warrant: http://bordc.org/FISAform.pdf.