Providing for consideration of the bill (H.R. 514) to extend expiring provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and Intelligence Reform and Terrorism Prevention Act of 2004 relating to access to business records, individual terrorists as agents of foreign powers, and roving wiretaps until December 8, 2011.

It is difficult to debate an issue of such importance and have very good friends who are taking an opposite position. But I think that, in this case, we have to look very squarely at the literal reading of the Constitution.

The First and Fourth Amendment literal reading makes it very clear that the Patriot Act is a destructive undermining of constitutional principles. There are extraordinary powers being given by the government, and it contravenes not just principles of the Constitution but our own oath to defend the Constitution.

I want to speak to the provisions that are set for reauthorization here.

Two of the provisions are contained in the Patriot Act, legislation that I opposed when it first came up because I believed that it was over-infringement on basic civil liberties, including freedom of speech.

The first one, section 206, known as the John Doe wiretap, allows the FBI to obtain an order from the FISA, Foreign Intelligence Surveillance Court, to wiretap a target without having to specify the target or their device, and I challenged the constitutionality because I believe this provision severely undermines the Fourth Amendment, which requires warrants to describe the place to be searched and the person or things to be seized. This provision of the Patriot Act requires neither the target nor device to be identified.

The second provision, section 215 of the Patriot Act, known as the business records provision, allows the FBI to order any person or business to turn over any tangible things, as long as it specifies it is for an authorized investigation. Orders executed under section 215 constitute a serious challenge to the Fourth and First Amendment rights by allowing the government to demand access to records often associated with the exercise of First Amendment rights, such as library records or medical records.

The third provision, section 6001, known as the lone wolf surveillance provision, is contained in the Intelligence Reform and Terrorism Prevention Act of 2004 that authorized the government to conduct investigations of non-U.S. individuals not connected with foreign power or terrorist groups, but effectively allows the government to circumvent the standards that are required to obtain electronic surveillance orders from criminal courts.

I would hope that my good friend from California, in his very passionate defense of the Patriot Act, did not mean to imply that the distinguished Mr. Conyers in some way would suborn terrorism, because he chooses to point out that the standards that are required to obtain electronic surveillance orders from criminal courts are really being circumvented under section 601.

I yield to the gentleman from California.

I think it is fair for us to debate this. I think we have to just be cautious about how far we draw conclusions about the motivations of each other in taking the positions that we do.

I want to first thank the ranking member, and I want to thank the gentleman from Texas for the amicable manner of comity that you have extended here. It is very much appreciated. I also want to say, as I have listen to my colleagues on the other side of the aisle speak in defense of this, I am aware that you love this country, that you want America to be safe, and you want America to continue to be free. And the great thing about this Congress is that we have different ways of viewing how we can go about that. But I have great respect for each of the speakers who has come forward.

I want to say that since Congress first passed the Patriot Act in 2001 that we have been continually challenged on this question of our constitutional duties to act as a coequal branch of government and that it is my belief that we have failed to conduct checks and balances over government power. I want to associate myself with the remarks of the gentleman from California (Mr. Rohrabacher) in that regard and that we have failed to conduct robust and effective oversight. And in connection with the gentleman from Wisconsin, some of the remarks that you have made about what we needed to do, I think you have made some good points on that. I also think that we have a responsibility here to protect the American people from overt infringements on their most basic civil liberties, and I see this continuing extension as being a challenge to that.

Mr. Speaker, I rise in strong opposition to H.R. 514.

Since Congress first passed the PATRIOT Act in 2001, we have continually abdicated our constitutional duties to act as a co-equal branch of government by failing to conduct checks and balances over government power, failing to conduct robust and effective oversight, and ultimately, failing to protect the American people from overt infringements on their most basic civil liberties by continuing to extend these provisions without any meaningful reforms.

These three provisions were passed in the wake of 9/11, and given sunsets in recognition of their far reaching and unprecedented powers that effectively allow the government to conduct domestic surveillance and demand material from people not connected to any terrorism investigation, including librarians and peace groups. Yet they have been extended Congress after Congress without any reform.

Perhaps even more troubling is that we are extending these provisions through the end of the year without addressing the PATRIOT Act as a whole.

In a 2007 article by the Washington Post, then Federal Bureau of Investigation (FBI) assistant director stated that he is ``not even sure such an example exists'' that would demonstrate how expanded surveillance has made a difference in our national security.

Section 215 of the PATRIOT Act expanded the type of information the government could request from targets, while at the same time, lowering the standard required to obtain an order to request private records from targets. This means that the government can obtain orders for private records or items from people who are not connected to any investigation, including U.S. citizens and lawful residents. Orders executed under this provision constitute a serious violation of First and Fourth Amendment rights by allowing the government to demand access to records often associated with the exercise of First Amendment rights, such as library or medical records.

National Security Letters (NSLs), which can be issued under Section 215 of the PATRIOT Act, allow the government to obtain private information from telecommunication companies, internet and email, and health care providers without judicial warrants or oversight. They can be issued to people who have not been accused of any wrongdoing and are often accompanied by gag orders.

According to an article in the Washington Post from 2005, NSLs ``do not need the imprimatur of a prosecutor, grand jury or judge. They receive no review after the fact by the Justice Department or Congress.'' The Fourth Amendment of the Constitution requires prior judicial review and allows warrants to be issued only with probable cause.

The government has used NSLs to demand records of patrons from librarians across the country. A decision by a federal district court rules in 2006 that the gag order enforced on librarians in Connecticut violated the First Amendment, forcing the government to withdraw the gag order and its demand for patron records.

Despite a successful challenge to the unconstitutionality of the original PATRIOT Act's gag order provisions by the American Civil Liberties Union (ACLU), 5% of all NSLs issued by the FBI in 2006 contained ``insufficient explanation to justify imposition of these obligations,'' according to the Inspector General of the Department of Justice.

The ability to demand records from Americans absent judicial review and probable cause are certain to quell free speech and freedom of association--rights protected and guaranteed by the Constitution.

The ``material support'' statute, also contained in the PATRIOT Act, criminalized the act of providing ``material support'' to any foreign organization designated as terrorist by the Secretary of State. ``Material support'' is defined so broadly that it can refer to almost any kind of support, including support that does not further terrorism. The U.S. Court of Appeals for the Ninth District Court ruled in 2000 that criminal bans on ``providing `personnel' and `training' to groups designated as foreign terrorist organizations by the government are unconstitutionally vague and could criminalize free speech as protected by the First Amendment,'' to include human rights advocacy training, humanitarian aid in conflict zones, or even writing an op-ed. A number of the cases brought forth by the government using this statute have been dismissed or ended in mistrial.

According to the ACLU, the material support provisions ``impermissibly criminalize a broad range of First Amendment-protected activity, both as a result of their sweeping, vague terms and because they do not require the government to show that a defendant intends to support the criminal activity of a foreign terrorist organization.''

Despite years of documentation by the Inspector General of the Department of Justice and respected human rights organizations of abuse by the government of these provisions, we have failed to hold agencies accountable for abusing the far reaching powers allowed under the PATRIOT Act.

As Members of Congress, we are sworn to protect the rights and civil liberties afforded to us by the Constitution. We have a responsibility to exercise our oversight powers fully, and significantly reform the PATRIOT Act to ensure that the privacy and civil liberties of all Americans are fully protected.

[From the Washington Post, Mar. 10, 2007]

FBI Audit Prompts Calls for Reform--Some Lawmakers Suggest Limits On

Patriot Act

(By Dan Eggen and John Solomon)

Lawmakers from both parties yesterday called for limits on

antiterrorism laws in response to a Justice Department report

that the FBI improperly obtained telephone logs,

banking records and other personal information on thousands

of Americans.

The audit by the department's inspector general detailed

widespread abuse of the FBI's authority to seize personal

details about tens of thousands of people without court

oversight through the use of national security letters.

It also found that the FBI had hatched an agreement with

telephone companies allowing the agency to ask for

information on more than 3,000 phone numbers--often without a

subpoena, without an emergency or even without an

investigative case. In 2006, the FBI then issued blanket

letters authorizing many of the requests retroactively,

according to agency officials and congressional aides briefed

on the effort.

The disclosures prompted a public apology from FBI Director

Robert S. Mueller III and promises of reform from Attorney

General Alberto R. Gonzales, who was the focus of a new tide

of criticism from Democrats and Republicans already angry

about his handling of the firing of eight U.S. attorneys.

``I am the person responsible,'' Mueller said in a hastily

scheduled news conference. ``I am the person accountable, and

I am committed to ensuring that we correct these deficiencies

and live up to these responsibilities.''

Democrats and Republicans alike said Gonzales, Mueller and

the Bush administration did not properly monitor the FBI and

guard the privacy rights of U.S. citizens and legal

residents. The report came at the end of a difficult

political week for the Bush administration, after the

conviction of Vice President Cheney's former chief of staff

in the CIA leak case and damaging allegations by fired

federal prosecutors.

Top lawmakers raised the possibility that Congress would

seek to curb the Justice Department's powers, most likely by

placing restrictions on the USA Patriot Act antiterrorism

law.

``This goes above and beyond almost everything they've done

already,'' said Sen. Charles E. Schumer (N.Y.), who was among

a host of Democrats promising investigative hearings. ``It

shows just how this administration has no respect for checks

and balances.''

Sen. Arlen Specter (Pa.), the Judiciary Committee's ranking

Republican, told reporters that Congress may ``impose

statutory requirements and perhaps take away some of the

authority which we've already given to the FBI, since they

appear not to be able to know how to use it.''

Senate Majority Whip Richard J. Durbin (D-Ill.), who has

been pressing for a review of national security letters since

2005, said the report ``confirms the American people's worst

fears about the Patriot Act.''

A national security letter is a type of administrative

subpoena that allows the FBI to demand records from banks,

credit-reporting agencies and other companies without the

supervision of a judge. The Patriot Act significantly

expanded the FBI's ability to use them, and a reauthorization

of the law last year required the audit that was issued

yesterday.

The findings by Inspector General Glenn A. Fine were so at

odds with previous assertions by the Bush administration that

Capitol Hill was peppered yesterday with retraction letters

from the Justice Department attempting to correct statements

in earlier testimony and briefings. Gonzales and other

officials had repeatedly portrayed national security letters

as a well-regulated tool necessary for the prevention of

terrorist attacks.

One such retraction letter, sent to Specter by Acting

Assistant Attorney General Richard A. Hertling, sought to

correct a 2005 letter that attacked a Washington Post story

about national security letters. ``We have determined that

certain statements in our November 23 letter need

clarification,'' Hertling wrote.

Fine's 199-page unclassified report found that the FBI's

records showed it issued more than 143,000 requests for

information on more than 52,000 people through national

security letters from 2003 to 2005. But not only did the

agency understate that number in required reports to

Congress, the number of requests it issued was much higher.

Nearly half the people targeted were U.S. citizens or legal

residents, and the proportion of such ``U.S. persons''

increased over the three-year period, the report said.

In examining a small sample of security letters issued by

four FBI offices, Fine discovered that the letters were

improperly issued about 16 percent of the time. In the sample

of 293 letters, the FBI had identified 26 potential

violations but missed 22 others, the report said.

The report also details how, after obtaining sweeping new

anti-terrorism powers under the Patriot Act in late 2001, the

FBI did not establish basic training and record-keeping

procedures to ensure that civil liberties were protected.

That kept the agency from giving Congress accurate numbers on

how often it used national security letters, the

investigation found.

``During the time period covered by this review, the FBI

had no policy or directive requiring the retention of signed

copies of the national security letters or any requirement to

upload national security letters to the FBI's case management

system,'' the report said.

The findings are reminiscent of those in previous reports,

including many by Fine's office, that have detailed the FBI's

chronic inability to keep track of items ranging from guns to

laptops to documents related to the Oklahoma City bombing

case. Fine determined that the latest violations were not

deliberate but that they could be widespread.

Gonzales described the problems as unacceptable and left

open the possibility of criminal charges. He ordered further

investigation.

``Once we get that information, we'll be in a better

position to assess what kinds of steps should be taken,''

Gonzales said after a speech to privacy officials. ``There is

no excuse for the mistakes that have been made, and we are

going to make things right as quickly as possible.''

At the same time, Gonzales stressed that he thinks ``the

kinds of errors we saw here were due to questionable judgment

or lack of attention, not intentional wrongdoing.'' Mueller

said that ``the number of abuses is exceptionally small''

compared with the broad use of national security letters and

that ``no one has been damaged'' by the errors.

Anthony D. Romero, executive director of the American Civil

Liberties Union, which has sued the government over its use

of national security letters, said the report shows the need

for an independent investigation of the Justice Department's

antiterrorism tactics.

``It confirms our greatest suspicions about the abuse of

Patriot Act powers and, specifically, national security

letter powers,'' Romero said.

Aside from the findings about national security letters,

the report details for the first time a separate kind of

emergency letter used in ``exigent circumstances,'' modeled

on letters used by New York FBI agents after the Sept. 11,

2001, attacks. The 739 emergency letters were issued as part

of an agreement with three unidentified telephone companies

and requested information with the promise of subpoenas,

which rarely materialized, the report said.

Mueller indicated that ``we stopped the use of these

letters'' in May 2006. An FBI official later clarified those

comments, saying emergency letters are still used but now

promise a national security letter rather than a subpoena

sometime in the future.

[From the Washington Post, Mar. 18, 2007]

Amid Concerns, FBI Lapses Went On--Records Collection Brought Internal

Questions but Little Scrutiny

(By R. Jeffrey Smith and John Solomon)

FBI counterterrorism officials continued to use flawed

procedures to obtain thousands of U.S. telephone records

during a two-year period when bureau lawyers and managers

were expressing escalating concerns about the practice,

according to senior FBI and Justice Department officials and

documents.

FBI lawyers raised the concerns beginning in late October

2004 but did not closely scrutinize the practice until last

year, FBI officials acknowledged. They also did not

understand the scope of the problem until the Justice

Department launched an investigation, FBI officials said.

Under pressure to provide a stronger legal footing,

counterterrorism agents last year wrote new letters to phone

companies demanding the information the bureau already

possessed. At least one senior FBI headquarters official--

whom the bureau declined to name--signed these ``national

security letters'' without including the required proof that

the letters were linked to FBI counterterrorism or espionage

investigations, an FBI official said.

The flawed procedures involved the use of emergency demands

for records, called ``exigent circumstance'' letters, which

contained false or undocumented claims. They also included

national security letters that were issued without FBI rules

being followed. Both types of request were served on three

phone companies.

Referring to the exigent circumstance letters, Sen. Charles

E. Grassley (R-Iowa) wrote in a letter Friday to Justice

Department Inspector General Glenn A. Fine: ``It is . . .

difficult to imagine why there should not have been swift and

severe consequences for anyone who knowingly signed . . . a

letter containing false statements. Anyone at the FBI who

knew about that kind of wrongdoing had an obligation to put a

stop to it and report it immediately.''

A March 9 report by Fine bluntly stated that the FBI's use

of the exigency letters ``circumvented'' the law that governs

the FBI's access to personal information about U.S.

residents.

The exigency letters, created by the FBI's New York office

after the Sept. 11, 2001, attacks, told telephone providers

that the FBI needed information immediately and would follow

up with subpoenas later. There is no basis in the law to

compel phone companies to turn over information using such

letters, Fine found, and in many cases, agents never followed

up with the promised subpoenas, he said.

But Fine's report made no mention of the FBI's subsequent

efforts to legitimize those actions with improperly prepared

national security letters last year.

Fine's report brought a deluge of criticism on the FBI,

prompting a news conference at which Director Robert S.

Mueller III took responsibility for the lapses. Some

lawmakers immediately proposed curtailing the government's

expansive anti-terrorism powers under the USA Patriot Act.

In a letter to Fine that was released along with the March

9 report, Mueller acknowledged that the bureau's agents had

used unacceptable shortcuts, violated internal policies and

made mistakes in their use of exigent circumstance letters.

Mueller also said he had banned the future use of such

letters this month, although he defended their value and

denied that the agency had intentionally violated the law.

Other FBI officials acknowledged widespread problems but

said they involved procedural and documentation failures, not

intentional misgathering of Americans' phone records. Mueller

ordered a nationwide audit, which began Friday, to determine

if the inappropriate use of exigency letters went beyond one

headquarters unit.

``We wish, in retrospect, that we had learned about this

sooner, corrections had been made and the process was more

transparent,'' FBI Assistant Director John Miller said

yesterday.

Fine's report said the bureau's counterterrorism office

used the exigency letters at least 739 times between 2003 and

2005 to obtain records related to 3,000 separate phone

numbers. FBI officials acknowledged that the process was so

flawed that they may have to destroy some phone records to

keep them from being used in the future, if the bureau does

not find proof they were gathered in connection with an

authorized investigation.

Disciplinary action may be taken when the bureau completes

an internal audit, a senior FBI official said in an interview

at headquarters Friday.

Ann Beeson, an attorney for the ACLU who has sued the FBI

in an effort to block some of its data requests, said that if

the bureau cannot prove a link between the letters and an

ongoing investigation, its requests were ``a total fishing

expedition.''

The FBI agreed that one senior official, who spoke on the

condition of anonymity because of forthcoming House and

Senate hearings on the matter, would speak for the agency.

Lawmakers have begun to probe who knew about the use of the

letters and why the department did not act more swiftly to

halt the practice. Grassley asked that Fine turn over to the

Senate Judiciary Committee copies of all FBI e-mails related

to the letters of demand, as well as transcripts of the

interviews Fine conducted on the issue.

The committee has scheduled a hearing for Wednesday, with

Mueller as the chief witness. On Tuesday, the House Judiciary

Committee intends to question Fine and FBI general counsel

Valerie Caproni.

FBI and Justice Department officials said most of the

letters at issue were drafted by the Communications Analysis

Unit (CAU), which comprises about a dozen people assigned to

analyze telephone records and other communications for

counterterrorism investigators. They sent the secret requests

to three companies--AT&T, Verizon and a third firm whose

identity could not be learned. Since the 2001 terrorist

attacks, the FBI has been paying the companies' cost of

supplying such records almost instantaneously in a form that

its agents can readily examine, according to the report and

the senior FBI official.

In each letter, the FBI asserted that ``due to exigent

circumstances, it is requested that records for the attached

list of telephone numbers be provided.'' The bureau promised

in most of the letters that subpoenas for the same

information ``have been submitted to the U.S. Attorney's

office who will process and serve them formally.''

But the inspector general's probe concluded that many of

the letters were ``not sent in exigent circumstances'' and

that ``there sometimes were no open or pending national

security investigations tied to the request,'' contrary to

what U.S. law requires. No subpoenas had actually been

requested before the letters were sent. The phone companies

nonetheless promptly turned over the information, in

anticipation of getting a more legally viable document later,

FBI officials said.

The use of such letters was virtually ``uncontrolled,''

said an FBI official who was briefed on the issue in early

2005. By that fall, CAU agents had begun creating

spreadsheets to track phone records they had collected for a

year or more that were not covered by the appropriate

documents, according to FBI e-mails and interviews with

officials.

A spokesman for AT&T declined to discuss the topic,

referring questions to the FBI. Verizon spokesman Peter

Thonis, who would not confirm nor deny the existence of an

FBI contract with his firm, said that ``every day Verizon

subpoena units respond to emergency requests from federal,

state and local law enforcement for particular calling

records. After 9/11, of course, Verizon responded to FBI

emergency requests in terrorist matters, and we had every

reason to believe they were legitimate emergency

situations.''

The inspector general's report said that the wording of the

exigency letters was copied from a standard letter that the

FBI's New York office used to obtain urgently needed records

after the 2001 terrorist bombings. When officials from that

office were later reassigned to create the CAU in Washington,

the senior FBI official said, ``they brought their business

practices with them'' and continued to use the same letter

``for reasons that I cannot explain.''

But the unit was not authorized under FBI rules to make

such requests, and from the outset in 2003 it asked FBI field

offices to submit the promised legal follow-up documents. The

offices rarely did so speedily, and in many cases ignored the

request altogether.

``In practice, if you have already got the records, the

incentive to do the paperwork is reduced,'' the senior FBI

official said.

When a lawyer in the FBI's national security law branch,

Patrice Kopistansky, noted in late 2004 that the proper legal

justifications were frequently missing or extremely late, she

did not advise agents to ``change their process,'' the senior

official said. ``Our advice was instead to . . . use these

letters only in true emergencies'' and institute ``covering

practices.''

These included ensuring that the bureau's agents had opened

a related investigation and promptly sent a formal national

security letter to provide legal backing for the demand.

Bassem Youssef, who currently heads the CAU, raised

concerns about the tardy legal justifications shortly after

he was assigned to the job in early 2005, according to his

lawyer, Steve Kohn.

``He discovered they were not in compliance, and then he

reported that to his chain of command. They defended the

procedures and took no action,'' Kohn said, adding that

``their initial response was to deny the scope of the

problem.''

Youssef has battled the FBI in court over whether he was

denied a promotion because of discrimination based on his

ethnicity.

Eventually, the general counsel's office organized a

meeting at headquarters on Sept. 26, 2005, where the bureau

considered a work-around: Its lawyers proposed creating

special, catch-all investigative files that could be used to

authorize quick phone-records seizures that did not involve

open field investigations.

But one official at the meeting, Youssef, argued that

genuine emergency requests for the records ``were few and far

between,'' according to an e-mail summarizing the meeting

that was reviewed by The Washington Post, and the idea was

never implemented. The account referred to efforts by one of

the bureau's top lawyers to brief ``higher ups'' in the

agency about the problem.

``At some point, they told us there were not that many such

letters'' still in use, the senior official said. ``We

believed the problem had resolved itself . . . in retrospect,

it never got resolved.''

One reason that FBI officials did not act more quickly is

that Kopistansky and others in the general counsel's office

did not review until May 2006 copies of any of the exigent

circumstances letters sent to the phone companies from 2003

to 2005. As a result, they were unaware that some of the

letters contained false statements about forthcoming

subpoenas and urgent deadlines, the senior official said.

Bureau officials ultimately decided to ``clean up'' the

problem by writing seven national security letters designed

to provide legal backing for all the telephone records

requests that still needed it, the senior FBI official said.

In every case, these requests in 2006 covered records already

in the FBI's possession and lacked the required cover memos

spelling out the investigative requirements for the requests.

At no time did senior FBI officials outside the

communications unit attempt to tally how often the exigent

circumstances letters had been used, with the result that

Mueller and others in senior management did not learn about

the scope of the problem until two months ago, when Fine

informed them, the senior official said.

I would like to get back to first principles here. The First Amendment, ``Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.''

This Patriot Act represents a wholesale abandonment of the right to assemble peaceably, of the right of freedom of association. This Patriot Act is a square violation of the Fourth Amendment, ``The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.''

Now, I can trust my friends on the other side of the aisle. They are decent people. This isn't about Democrat versus Republican. It's not about a Democratic President. It's not about if there was a Republican President or if we will have one in the future. This is about something actually much more important than all of us and then whoever might be an executive. It's about the Constitution of the United States.

Congress made a mistake when it passed the Patriot Act. Instead of sunsetting it and being done with it, we kept the provisions going. Some of them were made permanent. This law today, we seek to reauthorize certain sections of the Patriot Act. What I maintain is that what we have here is a destructive undermining of constitutional principles. We can't just say, well, let's trust our friends to do the right thing. This is about the Constitution. This is beyond friendship. This is beyond party. This is beyond who is the President. So I disagree with President Obama on this.

It's interesting. At this very moment that our President is on television celebrating the tremendous movement towards the free will of the people of Egypt who have suffered real repression and suppression of their basic liberties, we can celebrate something happening thousands of miles away, but it would be much better for America if we celebrated our Constitution.

What we have done with the Patriot Act, we have given the government enormous power. We have given the government the authority to reach deeply into people's private lives, into their business affairs without a court order. We need to think about that. Some people say they don't want government involved in certain things. Well, government is involved in a way that is devastating when you come to the devastation of constitutional principles, you give the FBI the ability to reach into people's private lives without a court order.

I'm telling you, whether you're a Democrat or Republican, this is a very dangerous thing that we're doing here.

Stand up for the Constitution.

[From the New York Times, Jan. 9, 2011]

Twitter Shines a Spotlight on Secret F.B.I. Subpoenas

(By Noam Cohen)

The news that federal prosecutors have demanded that the

microblogging site Twitter provide the account details of

people connected to the WikiLeaks easel including its

founder, Julian Assange, isn't noteworthy because the

government's request was unusual or intrusive. It is

noteworthy because it became public.

Even as Web sites, social networking services and telephone

companies amass more and more information about their users,

the government--in the course of conducting inquiries--has

been able to looke through much of the information without

the knowledge of the people being investigated.

For the Twitter request, the government obtained a secret

subpoena from a federal court. Twitter challenged the

secrecy, not the subpoena itself, and won the right to inform

the people whose records the government was seeking.

WikiLeaks says it suspects that other large sites like Google

and Facebook have received similar requests and simply went

along with the government.

This kind of order is far more common than one may think,

and in the case of terrorism and espionage investigations the

government can issue them without a court order. The

government says more than 50,000 of these requests, known as

national security letters, are sent each year, but they come

with gag orders that prevent those contacted from revealing

what the agency has been seeking or even the existence of the

gag orders.

``It's a perfect example of how the government can use its

broad powers to silence people,'' said Nicholas Merrill, who

was the first person to file a constitutional challenge

against the use of national security letters, authorized by

the USA Patriot Act. Until August, he was forbidden to

acknowledge the existence of a 2004 letter that the company

he founded, the Calyx Internet Access Corporation, received

from the F.B.I.

Mr. Merrill is now free to speak about the request, but

part of the gag order remains in place, and he is still

barred from discussing what information he had been asked to

provide. As a result, he said, before he gives a talk he

consults a six-page guide prepared by his lawyers at the

American Civil Liberties Union to be sure that he complies

with the order to avoid risking a punishment of five years in

prison.

The government cites national security as the reason the

contents of the letters--even their existence--are kept

secret. The F.B.I. is trying to prevent plots as they are

being hatched, according to Valerie Caproni, the general

counsel of the agency, and thus needs stealth.

In the case of a small Internet service provider like

Calyx, which was located in downtown Manhattan and had

hundreds of customers, even mentioning that the F.B.I. had

been sniffing around could harm an investigation, she said,

especially if ``the target is antsy anyway.''

Mr. Merrill, a 38-year-old from Brooklyn who studied

computer science and philosophy, said he created Calyx in

1994 when it was ``really pretty easy, there wasn't really

any competition.'' His clients included ``dozens of nonprofit

organizations and alternative media outlets.''

Mr. Merrill challenged the constitutionality of the letter

he received in 2004, saying the request raised ``red flags''

of being politically motivated. As a result of his suit and

two later ones, the law governing the letters has been

overturned and then revised by Congress.

In 2007, the F.B.I.'s inspector general found that the

agency had abused its own guidelines by including too many

peripheral people in its searches. The letters now receive

the ``individualized scrutiny'' of the agents who are filing

them, Ms. Caproni said.

All sides agree that it has become significantly easier to

challenge the letters' requests as well as their secrecy. At

the moment, there are no new challenges in the court system,

the government and the A.C.L.U. say.

The program, whose use has ``ticked up'' a bit in recent

years, Ms. Caproni said, is humming along. She added,

however, that the government had become more selective about

the types of companies to which it sent letters. ``All other

things being the same, one of the things investigators think

about is, `Who are we serving this? Are they comfortable with

this?' '' she said. ``Most of these N.S.L.'s are filed on

large companies. Why would they want to disclose that? Most

companies view it as good corporate citizenry.''

One critic of the law, former Senator Russ Feingold, said

in a statement that it was long past time for Congress ``to

rein in the use of national security letters.''

``This is not a partisan issue,'' Mr. Feingold said, ``it

is about the legislative branch providing an adequate check

on the executive branch. Republicans advocating limited

government should take a close look at these statutes and

consider supporting changes.''

Mr. Merrill argues that the blanket gag orders have

prevented a full public debate on the subject. He himself

largely left the I.S.P. business in 2004, independent of his

legal case, and only now has returned to hosting a couple of

clients as part of a nonprofit project, the Calyx Institute,

which aims to study how to protect consumers' privacy.

Regarding the news about Twitter, he wrote in an e-mail:

``I commend Twitter's policy of notifying their customers of

government requests for their private data and for their

challenging and subsequently removing the gag order. This is

a great example of the government's misuse of secrecy

provisions and of exemplary privacy ethics on behalf of

Twitter.''

Ms. Caproni, who has testified before Congress about the

program, said that it had been more than amply debated.

``People at the A.C.L.U. and the press'' think the letters

are ``a bigger deal than the companies.''

To one of Mr. Merrill's A.C.L.U. lawyers, Jameel Jaffer,

the smooth operation of the system is a sign that it is not

working. The privacy rights at stake are not those of the

companies who hold the information, Mr. Jaffer said, but

``about people whose records are held.'' And those people

should be told, he said.

``People used to be the custodians of their own records,

their own diaries. Now third parties are custodians of all

that,'' he said. ``Everything you do online is entrusted to

someone else--unless you want to go completely off the grid,

and I'm not even sure that is possible.''

The gentleman makes a point; and that is, if you are under a gag order, how are we supposed to know if there are any abuses? Hello.

What Mr. Gohmert said a moment ago, I want to associate myself with much of his remarks. And I have here, to submit for the Record, correspondence that I submitted on November 3, 2009, asking for review of the provisions of the Patriot Act that actually we are looking at today.

We create government to secure our rights, not to give them away. The Patriot Act represents giving away rights, not securing them. It's said, well, it hasn't been adjudicated.

The laws that we make derive from our constitutional authority, and that's not just a matter of political will but it's about moral reasoning. And when we look at section 215, which lets the government obtain orders for private records or items from people who are not connected to any investigation----

When we look at section 206, which allows the FBI to obtain an order from FISA to wiretap a target without having to specify the target or device; when we look at section 6001, which authorizes the government to conduct investigations of non-U.S. individuals not connected to a foreign power or terrorist group, effectively allows the government to circumvent standards that are required to obtain electronic surveillance orders from criminal courts; when we look at these things, these provisions are divorced from our constitutional experience. They are divorced from what we know are commonsense provisions of what our rights ought to be. That's why I'm opposed to the extension of the Patriot Act and why, if we had any sense, we would repeal the whole thing.

November 3, 2009.

Hon. John Conyers, Jr.

Chairman, Committee on the Judiciary, House of

Representatives,

Washington, DC.

Dear Chairman Conyers: I applaud you for your leadership on

reconsideration of various provisions of the Patriot

Amendments Act and FISA Amendments Act of 2009. These bills

provide a number of significant reforms that are important

steps toward restoring Congressional oversight of government

surveillance and civil liberties protections. I urge you to

protect the Constitutional rights and the civil liberties of

all Americans by ensuring that the legislation includes the

following essential reforms:

Enact stringent requirements for obtaining ``Roving

Wiretaps'': Section 206 of the USA PATRIOT Act, known as the

``John Doe wiretap'' currently allows the Federal Bureau of

Investigation (FBI) to obtain an order from the Foreign

Intelligence Surveillance Court (FISC) to wiretap a target

without having to specify the target or the device. Any

reauthorization must include reforms that require the FBI to

identify the device(s) to be wiretapped and to provide

evidence that the person they are targeting is ``an agent of

a foreign power'' and is using the device prior to

wiretapping the device(s).

``Lone Wolf'' surveillance provision must not be

reauthorized: Section 6001 of the Intelligence Reform and

Terrorism Prevention Act of 2004 authorizes the government to

conduct investigations of non-U.S. individuals not connected

to a foreign power or terrorist group. The government has

never had to use this provision. The likelihood of someone

acting alone while engaging in international terrorism is

highly unlikely. This provision must not be reauthorized.

Repeal blanket authorities in Section 215 of the PATRIOT

Act: Section 215 of the USA PATRIOT Act, known as the

``Business Records'' provision, allows the FBI to order any

entity (person or business) to turn over ``any tangible

things'' as long as it specifies it is for ``an authorized

investigation.'' Section 215 orders constitute a serious

violation of Fourth Amendment and First Amendment rights`` by

allowing the government to demand access to records often

associated with the exercise of First Amendment rights such

as library records and medical records. Authorization that

allows the FBI to demand information from or about innocent

Americans who are not a target of an investigation or who are

not ``agents of a foreign power'' must be repealed.

Reform National Security Letter (NSL) Issuance: The Justice

Department's Inspector General has found that upwards of

50,000 NSLs are issued every year, many against innocent

people two and three times removed from a terror suspect. The

Department of Justice Inspector General report in 2008 on the

FBI's use of NSLs stated that 57 percent of all NSLs were

issued to gather information on Americans. Judicial review

must be reinstated and any legislation that includes this

powerful tool that can collect communication, financial and

credit information must only be used against suspected

terrorists.

Reform NSL Gag Orders: NSLs come with a draconian gag order

that is almost impossible to fight in court because they

simply are not allowed to communicate about it. If the

government certifies to a judge that national security would

be harmed without a gag on the recipient of an NSL, the court

must find that certification conclusive. This bill must force

the government to justify a gag order to a judge and permit

that judge to engage in long standing First amendment

analysis before ruling.

Reform Material Support Statute: The government has used

the material support statute of the USA PATRIOT Act to

criminalize humanitarian aid by penalizing individuals or

groups that provide aid to communities in conflict zones.

Inside these zones, groups that are often included on the

Treasury's Foreign Terrorist Organization (FTO) list control

schools, refugee camps and hospitals. The statute as

currently written does not require the government to prove

the individual or group accused of supporting an FTO had any

specific intention of directing aid to the FTO. This statute

must be reformed by requiring the government to provide

``specific and articulable'' facts that make the case that

there was a specific intention to direct aid to an FTO.

Repeal de-facto immunity to telecomm companies for illegal

spying: The FISA Amendments Act of 2009 repeals de-facto

immunity afforded to telecommunication companies that spy on

Americans as allowed by the FISA Amendments Act of 2008. The

government and telecommunication companies must be held

accountable for violating privacy and First Amendment rights

of Americans. This year's reauthorization must ensure that

immunity for telecommunication companies is repealed.

Enact a ban on ``bulk collection'' under FISA: The FISA

Amendments Act of 2008 allowed the dragnet collection of all

international phone calls and emails of U.S. residents

without warrants or even suspicion. We must ensure that the

surveillance of suspected terrorists abroad does not infringe

the civil liberties and Fourth Amendment rights of Americans.

Any language regarding surveillance of international phone

calls and emails of U.S. residents must ensure that the

government is required to provide evidence that the targeted

communication pertains to a foreign power.

Thank you for consideration of these legislative

benchmarks. I and my staff stand ready to work with you in

your efforts to restore Constitutional protections and civil

liberties to the American people.

Sincerely,

Dennis J. Kucinich,

Member of Congress.

Mr. Speaker, the Patriot Act is a bill that has been plagued with abuse since it was first passed, and today's rule is yet another example of short-circuiting the system that our Founding Fathers set up. If there were ever the need for the close supervision and congressional oversight of a law, it is a law that discusses how and under what conditions a government can spy on its own citizens. After 10 years of public record, we all agree there are some clear sections of the law that can be improved; but instead of debating these sections of the law to better find that balance between protecting what makes it special to be Americans and protecting our national security, the Republican leadership has decided to ram through this bill with as little debate as possible.

Mr. Speaker, we spent an hour earlier discussing how we will spend 9\1/2\ hours discussing the organizational aspects of the House committee structure. Yet, for something that cuts to our core identity as Americans, we only have an hour under the rule and an hour under the bill to discuss it in its entirety.

This bill would reauthorize three of the most troubling provisions in the Patriot Act. Again, instead of actually debating the merits of these provisions and coming up with solutions that both sides can agree on to protect what it means to be an American, the Republican leadership has attempted first to force it through under the suspension calendar and now under a closed rule, the most restrictive kind of rule.

In spite of their plethora of promises to change the culture of Congress, this bill looks like it's being done under old business. On such an important issue, one that affects our national security and the civil liberties of every American, one that goes right to the heart of what it means to be an American and to our identity as citizens of this great Republic, the Republican majority has reverted to short- circuiting the system and closing down discussion.

Just yesterday, they held the vote open for more than half an hour, pressuring Members to switch votes. Thankfully, the effort failed to muster the majority, and that's why we are here before you today with an additional hour to discuss the Patriot Act, which is woefully insufficient; but I think the American people can be grateful that Members on both sides of the aisle stood up and said at least let's have more discussion about this. Only after failing to jam through the bill as a suspension bill did the Republican leadership bring it up under a rule.

The Judiciary Committee, which the Republicans argue has not had time to look at this or to consider this under the normal process, has actually already had several hearings in the past few weeks on other topics. Apparently, the topic of abortion was important enough on which to have a discussion by the Judiciary Committee but not the topic of the security of the American people and our civil rights as Americans.

So why can't the Judiciary Committee find the time to even hold a hearing to discuss an issue this important that cuts the very definition of what it means to be American? Even if a little more time is needed, a month, 2 months, why isn't there a 30-day extension, a 60- day extension before us instead of a 10-month extension? It should not be used as an excuse to prevent all proceedings from moving forward.

I yield to the gentleman from California.

Reclaiming my time, I think there would be broader agreement perhaps if there was a 60-day extension and then perhaps a need for another 60-day extension if there was no legislative business completed, but putting it off 10 months or a year can actually give an excuse not to bring to the forefront these very important issues that need to be dealt with.

This body can produce results. The single most significant bill was H.R. 2, the repeal of an entire body of health care law, and somehow there was the ability to bring that to the floor within days of the opening of the new Congress.

You know, both parties want to ensure that the government has the tools

we need to fight terrorism. We can all agree that the Patriot Act has issues that need to be resolved. If we can move this bill through the regular order, I'm confident that the Judiciary Committee can make improvements that they've already discussed in prior session. In fact, just last year, the Judiciary Committee reported out by voice vote reform measures that would improve the Patriot Act and add real oversight.

It's clear that there is bipartisan support to improve this bill. Even as we speak, the Senate is debating three different versions of the reauthorization bill, and yet here in the House, we have only this one, originally scheduled with hardly any debate and now with a very closed structure and no ability for Members of either party to offer amendments.

Apart from its procedural flaws, the reauthorization fails to provide the administration the tools and support it truly needs. The administration, which does support reauthorizing the Patriot Act, has repeatedly asked for a real reauthorization rather than the short-term extensions that increase the uncertainty surrounding long-term planning, intelligence, and law enforcement as they carry out this mission. Instead of a patch that will get us through another few months at the expense of the civil liberties of the American people, we need the opportunity to truly work together to fix this bill.

Specifically, this bill would reauthorize three provisions: section 215, 206, and 6001 of the Intelligence Reform and Terrorism Prevention Act.

Section 215 allows the government to capture any tangible thing that might be relevant to terrorist investigations. This includes your medical records, your diary, even what books you've checked out of the library and what Web sites you visited. In the past, these orders were limited to narrow classes of business and records, but the specific facts pertain to any agent of a foreign power, and the Patriot Act has swept away these basic requirements. In fact, it was reported by a bookstore that the information regarding everybody who purchased biographical books about Osama bin Laden had been requested.

The justification used for this provision is that the government needs to have the ability to protect our national security, and yet this goes against the basic constitutional notions of search and seizure. We ought to seriously consider making changes to this section instead of blindly giving the government the ability to spy on its citizens.

Let me just give a few examples--and I think this will come as some surprise to many people--of the transgressions that have already occurred, the affronts to our civil liberties and freedoms as Americans that have already occurred under the Patriot Act.

Perhaps some of us have taken Christmas vacations to Las Vegas. Well, there is a list of 300,000 people that visited Las Vegas in Christmas of 2003 that according to an article in the Las Vegas Review Journal said the casino operators said they turned over the names and other guest information on an estimated 270,000 visitors. Now, I think a lot of people don't expect that to happen when they visit Las Vegas.

There needs to be an oversight process in place to ensure that, when extreme measures are necessary that interfere with our privacy, it goes through the right channels. This particular incident, even the FBI conceded that the personal records had not borne out a particular threat.

The Patriot Act has been used more than 150 times to secretly search individuals' homes, and 90 percent of those cases have had nothing to do with terrorism.

The Patriot Act was used against Brandon Mayfield, a Muslim American, innocent of any crime, to tap his phones, seize his property, copy his computer files, spy on his children, take his DNA, all without his knowledge, Mr. Speaker.

It's been used to coerce an Internet service provider to divulge information about Web surfing and Internet activity and then gagged that provider, preventing them from even saying that their information had been compromised.

It's been used to charge, obtain, and prosecute a Muslim student in Idaho for posting Internet Web site links to materials that were found objectionable by some, even though those same links were available on a U.S. Government Web site.

Mr. Speaker, part of what makes America special is the balance between our civil liberties and our rights as Americans and our national security. When so many Members of Congress, so many Americans on both sides of the aisle, of all ideologies, feel that we can do better, I think we owe it to the people of this country to do better and have a better process as a Congress, to improve the Patriot Act to help protect our liberties and keep us safe over the long term.

I reserve the balance of my time.

Mr. Speaker, I yield 3 minutes to the gentleman from Georgia (Mr. Johnson), a member of the Judiciary Committee.

I yield the gentleman an additional 30 seconds.

I yield myself 30 seconds.

The gentleman from Wisconsin mentioned that he is not aware of abuses under section 215. I would remind my colleagues that most of the uses are classified under 215, and there has not yet been a briefing for Members this Congress for us to make our assessment of whether there have been abuses of section 215. I have not had a briefing nor has there been one offered here to the Members of the 112th Congress. And I think before we make a decision about section 215, we need to know how it has been used. That's a very simple request.

With that, I yield 3 minutes to the gentleman from Ohio (Mr. Kucinich).

Mr. Speaker, I yield 3 minutes to the gentlewoman from Texas (Ms. Jackson Lee), a member of the Judiciary Committee.

Mr. Speaker, I yield the gentlewoman another 30 seconds.

I yield the gentlewoman another minute.

I yield the gentlewoman another 15 seconds.

I yield myself 1 minute to respond.

At this point in the 112th Congress, the Judiciary Committee has found time to hold several hearings. I have been informed that they have held hearings on topics that are certainly important--immigration, relating to health care and malpractice--and yet this topic that is being discussed today, something that is so fundamental to our identity as Americans, has not benefited from a single hearing in the 112th Congress.

And one cannot say, oh, it's because they haven't had hearings or they're just reconstituting themselves. I have been informed that they have actually had several hearings to date; they have just simply been on other topics. Apparently, this hearing isn't important enough to warrant a hearing in the early part of the 112th Congress.

One of the difficulties in exercising oversight with regard to section 215 is that the orders are prohibited from being disclosed that they got an order to anyone but their attorneys. So we have very little ability, absent a classified briefing, which we have not been offered, to even find out if section 215 has been abused or not.

With that, I yield 1 minute to the gentleman from Ohio (Mr. Kucinich).

Mr. Speaker, I want to again bring your attention to section 215 and the difficulty which we in this body and the American people as a whole have with regard to exercising oversight over abuse of government authority.

An example that I gave earlier, the American Library Association confirmed that the Federal Government went into a library and asked for the list of everybody who checked out a book on Osama bin Laden. Now, recipients of 215 orders can't even disclose that they received such an order to anybody but their attorneys. So what ability do we have as the People's House to exercise oversight about whether there are abuses?

It has been brought out by several people on the other side, my colleague from Wisconsin, oh, there aren't abuses. Well, if there is a secretive process that prevents us from knowing about abuses, how are we to know in fact whether there are abuses?

I also want to discuss section 206 that we are discussing the renewal of here today, the provision of the bill that allows the government to conduct the roving wiretaps. This allows the government to obtain surveillance warrants that don't even specify the person or the object that is being tapped. It could involve tapping an entire neighborhood of telephones that a suspect might use--an unnamed suspect--might use or might not use. There is nothing even to specifically prohibit it from being an entire city of telephone calls being tapped. And we don't know how it has been used. The Fourth Amendment clearly states that warrants need to specify the person and places to be seized and searched with particularity.

Mr. Speaker, we began this session of Congress by reading the United States Constitution, including the Fourth Amendment, here in the House of Representatives. We did that to help make sure that the executive branch or the legislative branch don't have unfettered power to decide singlehandedly who and how to search private citizens and seize their properties.

The Founding Fathers were rightfully worried about the possibility of the central government issuing general warrants that would give it far- reaching power to spy on its citizens and intervene in their private lives. We should honor the Founding Fathers' clear wishes expressed in our Constitution instead of authorizing our Federal Government this kind of power.

Now, the justification used for this provision is that the government needs to have the ability to spy on a suspect as they move from phone to phone. No, no one objects to that authority when the security of the American people is at stake. But that doesn't mean that the government shouldn't have to specify who they are going to spy on and under what conditions. In fact, under Federal criminal law, the government is already required to state either the person or the place that is subject to the wiretap.

It is these sorts of commonsense revisions that I think we could achieve bipartisan consensus on to provide a longer-term stability with regard to the necessary provisions of the Patriot Act.

The final section that will be reauthorized in the bill, section 6001, deals with the ``lone wolf'' provisions which were alluded to by the last two speakers which allows secret surveillance of noncitizens in the U.S. even if they are not connected to any terrorist group or foreign power.

Now, this authority is only granted in secret courts and again threatens our understanding of the limits of our Federal Government's investigatory powers within the borders of our own country. It blurs the line between domestic national security and foreign intelligence. It is clear that we allow a process to improve this.

My friends on the other side of the aisle say they are worried about the growth of government, yet in spite of all the rhetoric about how the government is trying to take over your lives, this, their fifth bill under a rule, actually gives the government the ability to spy on innocent Americans. No wonder so many Republicans joined so many Democrats in voting against this bill earlier this week.

I urge all of my colleagues who are worried about the unchecked growth of the state, anyone who seriously believes in protecting the rights and liberties of Americans, or anyone who simply thinks that we need to take some time to seriously look at these issues to debate them, to vote ``no'' on this bill, to force a discussion of these issues, rather than vague promises of future hearings or markups to improve this bill. Let's accelerate that timeline, Mr. Speaker, to ensure that the concerns of the American people to help protect what it means to be an American, what is so close to our identity as Americans, protecting our individual liberties according to the Founding Fathers as articulated in our Constitution, we can reconcile that with the need to protect the American people's safety, and let us begin that work.

With that, I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 79 and ask for its immediate consideration.

Mr. Speaker, I am happy to yield the customary 30 minutes to my good friend and Rules Committee colleague, the gentleman from Boulder (Mr. Polis), pending which I yield myself such time as I may consume.

(Mr. DREIER asked and was given permission to revise and extend his remarks.)

Mr. Speaker, 18 days from now, three key provisions of the Patriot Act are set to expire, leaving a gap in our national security framework. Today's underlying legislation would temporarily-- and I underscore the word, Mr. Speaker--temporarily extend these provisions to allow for the development of a long-term solution, with the many questions that are out there.

With strong bipartisan support, the previous Congress simply passed a blanket 1-year extension without addressing any of the underlying challenges, questions and controversies. I am the first to admit that there are challenges, questions and controversies that relate to the Patriot Act. Unfortunately--and again, it was by a vote of 315-97 on February 25 of last year, Mr. Speaker--we went through that entire year. But guess what. Not a single hearing was conducted subsequent to the passage of that extension. Not a single hearing over the past year has been held.

I feel very confident that my colleagues who have joined me on the floor here from the Judiciary Committee--Mr. Lungren, who is here right now, Mr. Sensenbrenner, who chairs the Crime Subcommittee, and Mr. Gohmert--I mean, these gentlemen and I have just had a conversation, Mr. Speaker, in which they have made an absolute commitment that this Congress will not make the mistake that was made over the past year. Following this short-term extension, we will have a thorough oversight process in which the committees of jurisdiction will take a very close look at how we pursue the terrorists who threaten our homeland.

Now, everybody acknowledges that this is not only controversial, not only filled with questions and not only filled with challenges, but that it is very, very complicated. The individuals and networks who seek to do harm to Americans change and adapt every single day. Mr. Lungren and I were just having a conversation in which we were looking at the situation that existed a decade ago, right after September 11. The threat is much different today than it was 10 years ago, and that's why we need to recognize that they are constantly changing and adapting their tactics to try and undo the United States of America and the free world. Staying one step ahead requires a tremendous amount of flexibility, ingenuity, coordination, and of course the right law enforcement tools.

Just today, Secretary of Homeland Security Janet Napolitano said that the threat that exists today--and Mr. Gohmert just showed it to me on his iPad; it's on the front of one of the

newspapers around here--is as great as it has been since September 11. Then when I said it to Mr. Lungren, he reminded me that it's a different threat, a different threat today than the one that we faced in the past. That's why flexibility, ingenuity, and coordination are absolutely essential if we are going to proceed.

We need to ensure that we are taking all necessary steps while fully protecting the rights of all Americans. I want to underscore that this is one of the reasons that, going back 10 years, as we were legislating through the prism of September 11, I was very insistent that we have the ability to have oversight and to look and make sure that we are not undermining the rights of the American people. We need to ensure that that is a priority as we proceed.

This process is going to be a lengthy process over the next 10 months. It is not a process that can be resolved in the 7 legislative days that exist between now and February 28 when this is scheduled to expire. In the immediate term, it is imperative that we temporarily extend the expiring provisions to ensure that we do not suddenly create glaring loopholes in our national security. It is imperative that we commit to a comprehensive and, yes, transparent process. I had a conversation downstairs with my California colleague, Mr. Rohrabacher. All the way to when this measure comes to the floor, we want to ensure that we have an open and transparent process when it comes to changes/ modifications to the Patriot Act, and we want amendments to be considered. We want there to be a free-flowing debate as we proceed.

Mr. Speaker, the last piece of legislation, the resolution that we were just discussing, has to do with job creation and economic growth because we want to unleash the potential of American workers by freeing them from the onerous regulations that have been imposed on them. Some might ask, Is this in fact a jobs bill? Well, I think about what happened to our Nation's economy following September 11 of 2001. We all know the devastation that took place. The New York Stock Exchange had to close down for a week. We saw tremendous disruptions in our economy and the job force.

This measure is designed to ensure our national security. Without national security, we won't have the potential to save and create jobs in this country. So as we are enjoying economic recovery today, I see this measure as being critical to our quest for sustained job creation and economic growth, and believe that they are so inextricably tied that it is essential that we put this extension in place so that, over the next 10 months, nothing will be done to undermine the security and the safety of our fellow Americans.

The five most important words in the middle of the Preamble of the Constitution, Mr. Speaker, are ``provide for the common defense.''

That is what priority number one is.

Mr. Lungren and I were talking about this yesterday morning at the Republican Conference. It is absolutely essential that we recognize that as our number one priority because providing for the common defense and ensuring our security ensures that our economic security with the potential for job creation will be able to be sustained.

Mr. Speaker, I urge my colleagues in a bipartisan way--since we had a vote of 315-97 on February 25 of last year and with, again, strong bipartisan support from many, many, many Democrats who, unfortunately, chose to vote ``no'' when we had this under suspension of the rules, now we are considering it under a process. This is bipartisan, by the way. When a measure is not successful under suspension of the rules, Democrats and Republicans alike bring measures to the floor under this process that we are considering this measure today.

So I urge my colleagues to support this so that we can proceed with the very important work that Messrs. Sensenbrenner, Lungren, Gohmert, and others will be pursuing.

I reserve the balance of my time.

Will the gentleman yield?

I thank my friend for yielding.

I will explain why it is that we have more than a 30-day extension. As I said, with the controversies, the challenge and the absolute humongous task that is faced, we know that the legislative process takes a while, and to have that 10 months' extension is essential for them to do their work.

Mr. Speaker, I yield myself 30 seconds to say that I agree with much of what my friend from Boulder has said.

I will say this. It was February 25 of last year that a 1-year extension was provided and not a single hearing held. It is very important that we deal with these questions that my friend has raised, and we have them as well. They need to be addressed.

The administration has come out in strong support of this extension. They'd like to have the extension not a 30- or 60-day; they'd like this extension to go to December of 2013 if they had their way. That's what the Statement of Administration Policy says.

And so, Mr. Speaker, I've got to say that I believe that we are very much on the right track to ensure that we get those issues addressed.

I now yield 4 minutes to my friend from Menomonee Falls (Mr. Sensenbrenner), the author of this extension and the chairman of the Crime Subcommittee, who will be explaining in great detail the challenges that we face.

Mr. Speaker, I yield myself 30 seconds to say to my good friend from Georgia that no one is trying to ram anything through at this point. President Obama strongly supports this extension, I would say to my friend. He, in fact, wants it to go to December of 2013. We had a 1-year extension that was put into place, passed here by a vote of 315-97 on February 25, 2010.

There was a commitment then, and certainly people inferred, that we would have hearings. There was not a single hearing held during that entire period of time, and we've made an absolute commitment. We've just heard from the gentleman from Wisconsin (Mr. Sensenbrenner). We are about to hear from the gentleman from California (Mr. Lungren), the chairman of the Cybersecurity Subcommittee, that we are going to, in fact, have the process that my friend desires.

Mr. Speaker, I now yield 5 minutes to the gentleman from Gold River, California (Mr. Lungren), the chairman of the Cybersecurity Subcommittee.

I thank my friend for yielding.

Mr. Speaker, we have the benefit of having my friend from Gold River, my friend from Menomonee Falls here on the floor, and I would like to ask each of them, if I might, if they would underscore the commitment that was raised by the gentleman from Georgia.

Mr. Speaker, I yield myself 1\1/2\ minutes.

I would like to inquire of both my friends what kind of commitment they are prepared to make in dealing with this, in light of the fact that we have gone for an entire year following the 315-97 vote passage of this measure without a single hearing being held.

First, I yield to my friend from Menomonee Falls, the chairman of the Crime Subcommittee.

Reclaiming my time, I would say to my friend that I think it's very important to note that, as those hearings proceed, issues that relate to civil liberties will clearly be part of the hearing process and part of the debate.

Am I correct in concluding that?

I yield to my friend.

I appreciate that.

Mr. Speaker, I yield myself an additional 45 seconds.

And I am happy to yield to the gentleman from Gold River to respond to the question I propounded earlier.

Mr. Speaker, I yield myself an additional 30 seconds.

I would just like to say in response to my friend on the roving wiretap issue, it is fascinating. As I began my opening remarks, I was talking about the fact that Mr. Gohmert showed me his iPad, which had the headline on that iPad that the Secretary of Homeland Security, Janet Napolitano, has indicated that the threat that exists today is greater than it has been at any time since September 11, 2001. That technology didn't exist back in 2001 or certainly back in 1980. The roving wiretap is designed to focus on the potential terrorist and not on some antiquated technology that we have.

With that, I reserve the balance of my time.

Mr. Speaker, I yield 30 seconds to the gentleman from Wisconsin (Mr. Sensenbrenner).

Will the gentlewoman yield?

I thank my friend for yielding. And I would just say, first of all, I appreciate the bipartisan support for the effort led by our friend from Menomonee Falls, Wisconsin, which I think is terrific.

The question that I would propound to my friend is, if we look at the February 25 passage of this measure by a vote of 315-97 and the 1-year period of time, I know that the gentlewoman, as a member of the Judiciary Committee and the Homeland Security Committee, certainly would have wanted to have hearings or support the notion of hearings. I wonder why there weren't hearings held during that 1-year period of time.

I am talking about February 25 of last year. Last year was when this was passed, a year ago.

Mr. Speaker, I yield myself 30 seconds.

The point is, February 25 of 2010 there was an entire session of Congress. It was when the Democrats were in the majority. During that period of time, through the entire 1-year extension, there was not a single hearing held; and I know that my friend, as a member of the Homeland Security Committee and the Judiciary Committee, would have been a strong proponent of holding those hearings. And that's why it just surprises me that, assuming that she did insist on them, that she was unsuccessful, Mr. Speaker, in the quest to get those hearings.

And I should add that the organization for the 112th Congress is just under way today, in fact, due to the fact that the minority has refused to allow the organization to take place. So there has been a year period of time. And I wish very much, Mr. Speaker, that there had, in fact, been hearings over the last year.

I am happy to yield 3 minutes to my very good friend from Tyler, Texas (Mr. Gohmert), the vice chairman of Mr. Sensenbrenner's Crime Subcommittee.

Mr. Speaker, I am happy to yield 3\1/2\ minutes to the distinguished chair of the Intelligence Committee, our friend from Brighton, Michigan (Mr. Rogers).

Mr. Speaker, I yield 2 minutes to a hardworking new Member of this body, my friend from Drexel Hill, Pennsylvania (Mr. Meehan).

Mr. Speaker, I yield myself the balance of my time.

Mr. Speaker, the only way for us to guarantee the rights of every American and to ensure that we will be going down the road to be a safe nation is to pass this extension so that these very able gentleman can proceed with the kinds of hearings that are necessary so that we assure that all the rights we need are protected and that we are a safe and secure country.

I yield back the balance of my time, and I move the previous question on the resolution.

The previous question was ordered.

Mr. Speaker, I too would like to express my appreciation to the chairman, my colleague from Texas, for the time and to the ranking member as well.

All of the issues have been laid out as to the three elements. So I just simply want to pose a question to my colleagues: We know that we have a problem with the three remaining intrusive and, I believe, unconstitutional provisions.

We know that Ranking Member Conyers has explained that we were not absent; we did not have the lights out under his jurisdiction. We actually pursued this. We couldn't get an agreement. We couldn't move toward the floor. So the question now is, we realize that a roving wiretap is intrusive. We realize that the ``lone wolf'' provides a problem. So the question is, how do we fix it for the American public? How do we ensure the Constitution is intact?

Let me be very clear: It is well documented that human intelligence is the best. Why? Because most of us were surprised when I say that in the intelligence community--at least they have not articulated about what is going on in the Mideast, both in Egypt and Yemen and otherwise--we were surprised. Did any of that help us? This is an intrusion on the American public.

We are not in any way nonpatriots. We are patriots. We believe in the Founding Fathers. We understand that they came together to give you, Americans, the right to your freedom. We ask for the Fourth Amendment to be sacrosanct, to indicate that you are not subject to unreasonable search and seizure. That is my question to my colleagues: When will you engage in the hearings and the ability to mark something up to address these infringements? How quickly will you move? December of 2011 is too long. Let us work together to uphold the Constitution.

Mr. Speaker, I rise today to express my opposition to the H.R. 514, ``To extend expiring provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and Intelligence Reform and Terrorism Prevention Act of 2004 relating to access to business records, and individual terrorists as agents.''

This bill would extend provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005, and the Intelligence Reform and Terrorism Prevention Act of 2004 through December 8, 2011. It extends a provision that allows a roving electronic surveillance authority, and a provision revising the definition of an ``agent of a foreign power'' to include any non-U.S. person who engages in international terrorism or preparatory activities, also known as the ``lone wolf provision.'' It also grants government access to business records relating to a terrorist investigation.

While the PATRIOT Act is intended to improve our ability to protect our Nation, it needs to be revised and amended to reflect the democratic principles that make this country the crown jewel of democracy. The bill before us today, however, does not do that. In fact, even the manner by which are even considering this bill, only days after introduction without any oversight hearings of mark-ups, circumvents the process we have in place to allow for improvements and amendments to be made.

The three expiring provisions of the PATRIOT Act that H.R. 514 would extend overstep the bounds of the government investigative power set forth in the Constitution.

The first provision authorizes the government to obtain ``any tangible thing'' relevant to a terrorism investigation, even if there is no showing that the ``thing'' pertains to suspected terrorists or terrorist activities. This provision, which was addressed in the Judiciary Committee during the 111th Congress, runs afoul of the traditional notions of search and seizure, which require the government to show ``reasonable suspicion'' or ``probable cause'' before undertaking an investigation that infringes upon a person's privacy. Congress must ensure that things collected with this power have a meaningful nexus to suspected terrorist activity. If we do not take steps to improve this provision, then it should be allowed to expire.

The second provision, known commonly as the ``roving John Doe wiretap,'' allows the government to obtain intelligence surveillance orders that identify neither the person nor the facility to be tapped. Like the first provision, this, too, was addressed in the Judiciary Committee during the last Congress, and is also contrary to traditional notions of search and seizure, which require government to state ``with particularity'' what it seeks to search or seize. If this provision were given the opportunity to be amended and improved, it should be done so to mirror similar and longstanding criminal laws that permit roving wiretaps, but require the naming of a specific target.

The third provision that H.R. 514 would extend is the ``lone wolf' provision, which permits secret intelligence surveillance of non-U.S. persons who are not affiliated with a foreign organization. This type of authorization, which is only granted in secret courts, is subject to abuse, and threatens our longtime understandings of the limits of the government's investigatory powers within the borders of the United States. Moreover, according to government testimony, this provision has never been used. Because of the potential for abuse created by this provision, and the lack of need for its existence, it, too, should be allowed to expire.

Another problem with H.R. 514 is that it fails to amend other portions of the PATRIOT Act in dire need of reform, specifically, those issues relating to the issuance and use of national security letters, NSLs. NSLs permit the government to obtain the communication, financial and credit records of anyone deemed relevant to a terrorism investigation, even if that person is not suspected of unlawful behavior. I repeat, even if that person is not suspected of unlawful behavior.

The three provisions I have just mentioned, as well as the issues surrounding NSLs, have all been examined and amended in the past Congresses, because they were in dire need of improvements to protect the rights of Americans. I was against these provisions, as written, in the past, and without amendments, I am still against them today.

Issues surrounding these particular provisions are not a stranger to us, for we have been dealing with them since 2001 when the PATRIOT Act was introduced. In 2005, the PATRIOT Act was examined in the Judiciary Committee. I, along with other Members of the Judiciary Committee like Mr. Conyers and Mr. Nadler, offered multiple amendments that not only addressed the three provisions in H.R. 514, but also National Security Letters and the lax standards of intent.

Again, these same issues came before us in 2007. On August 3, 2007, I stood before you on the House floor discussing the Foreign Intelligence Surveillance Act, FISA, another piece of law used in conjunction with the PATRIOT Act and essential to combating the war on terror, but one that was in need of improvements to protect Americans' constitutionally enshrined civil liberties. On that day, I said that, ``we must ensure that our intelligence professionals have the tools that they need to protect our Nation, while also safeguarding the rights of law-abiding Americans,'' and I stand firmly behind that notion today.

When we were considering FISA, there were Fourth Amendment concerns around secret surveillance and secret searches, which were kept permanently secret from the Americans whose homes and conversations were targeted. There were also concerns such secret searches intended for non-U.S. citizens, could be used to target Americans.

I offered amendments to ensure that any surveillance of an American is done through established legal procedures pursuant to FISA and the FISA court authority, and to ensure that the Foreign Intelligence Surveillance Court is indispensable and would play a meaningful role in ensuring compliance with our constitution. I stand here today urging my colleagues to consider allowing similar amendments to the PATRIOT Act that better protect Americans' right to privacy before moving this legislation out of the House of Representatives and onto the other legislative body.

Furthermore, this very bill was considered last year in the 111th Congress, and went through oversight hearings and two days of mark-up in the Judiciary Committee. Yet, none of those voted-on, bipartisan amendments that resulted from those hearings are included in this bill. In those hearings, multiple concerns were raised about the breadth of the PATRIOT Act and the leeway it gives to infringe upon an individual's privacy and civil liberties.

In the mark-up, I personally introduced amendments that would allow for greater transparency in the PATRIOT Act and enhanced protection against violation of individuals' civil liberties. None of my amendments, or those introduced by any of my colleagues who were on the Judiciary Committee at that time, are included in this legislation.

None of the privacy concerns or civil liberty infringement issues that were raised in those hearings have even been addressed. I am deeply concerned that my colleagues on the other side of the aisle are considering overlooking the very valid concerns of the American people, without so much as a hearing.

As a member of the Homeland Security Committee, I understand and appreciate the importance of national security, and the challenges we face as we strive to protect our Nation from foreign threats. However, as an

American citizen, I am deeply concerned when our constitutional rights run the risk of being infringed upon in the name of national security.

To win the war on terror, the United States must remain true to the founding architects of this democracy who created a Constitution which enshrined an inalienable set of rights. These Bills of Rights guarantee certain fundamental freedoms that cannot be limited by the government. One of these freedoms, the Fourth Amendment, is the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. We do not circumvent the Fourth Amendment, or any other provision in the United States Constitution, merely because it is inconvenient.

As an American citizen, the security and safety of my constituency is pinnacle, but I will never stand for legislation that infringes on the basic rights afforded in our Constitution. When our founding fathers drafted the Constitution, after living under an oppressive regime in Britain, they ensured that the American people would never experience such subjugation. Where are the protective measures for our citizens in the PATRIOT Act? Why are the measures addressed in the last Congress not included in the bill?

Instead of reauthorizing these provisions, Congress should conduct robust, public oversight of all surveillance tools and craft reforms that will better protect private communications from overbroad government surveillance.

There is nothing more important than providing the United States of America, especially our military and national security personnel, the right tools to protect our citizens and prevail in the global war on terror. Holding true to our fundamental constitutional principles is the only way to prove to the world that it is indeed possible to secure America while preserving our way of life.

Because of the negative privacy implications of extending all of these provisions, I ask my colleagues to please join me in opposing H.R. 514, a bill to extend expiring provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and Intelligence Reform and Terrorism Prevention Act of 2004 relating to access to business records, and individual terrorists as agents.