Jeff Flake

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, I am probably the last person expected to speak on behalf of the committee or the leadership in general. I tend to be critical sometimes of committees and the leadership and the process here. But let me tell you, I have watched the process here in the Committee on the Judiciary over the past couple of years on this issue. I have watched us hold hearing after hearing, 12 just in the last several months, 2 in the last Congress, and I have watched us adopt amendment after amendment in committee. We held a 12-hour markup there, a serious markup. I am often critical of the way we do business here, but here I saw it work. We did exercise effective oversight. Mr. Speaker, nobody loves sunsets like this Arizonan. I was very supportive of the sunsets we had in the bill initially. I am very supportive of the sunset we have, the 10-year sunsets on the two controversial provisions. I think those ought to stand, and I hope they make it through the process. But I have learned on issues like this you do not get everything you want. I did not get every amendment I wanted. I got a few, and a few of the ones we did get were substantive. We have made amendments to section 215, to section 213. We have tightened up the requirements of national security letters. These are substantive amendments. They are good. Sometimes, as my hero in politics said once, in one book, Barry Goldwater said, ``Politics is nothing more than public business. Sometimes you make the best of a mixed bargain. You don't always get everything you want.'' We got good substantive reform here and we have sunsets. They are a bit longer than I am comfortable with at times, but we have them here. I think we ought to make the best of what we have. It is a good product. I commend the chairman and the others. And I should say it is not just the Committee on the Judiciary that has gone through this process. The Permanent Select Committee on Intelligence has had hearings as well. They have had a markup process and have worked collaboratively, Democrats and Republicans. My own amendments, virtually every one of them, had Democrats on them. I have worked with them and we have worked together on this. I helped form the PATRIOT Act Reform Caucus over a year ago. We have worked to make sure these changes have been made. This is a good product. I urge a ``no'' vote on the motion to recommit and ``yes'' on the underlying bill.

Mr. FLAKE

Mr. FLAKE. Mr. Chairman, I demand a recorded vote.

Mr. FLAKE. Mr. Chairman, I yield myself the remaining time to conclude briefly, simply to say that the distinguished ranking minority member of the committee, the gentleman from Michigan (Mr. Conyers), mentioned that the amendment represents half a loaf, and I will freely concede that it does. Rarely do you get an amendment to a bill that represents the full loaf. But I should point out that in committee we considered another half- a-loaf amendment, if you will, to section 213; and that amendment by myself and the gentleman from New York (Mr. Nadler) clarified or, not clarified, but actually put in some false stops with regard to delayed notification searches where you have to appear before a judge after 80 days to justify delayed notifications. After 90-day increments beyond that time, you have to appear again and justify that search as well. That is the other half a loaf. We have also had many other amendments in committee, and here on the floor, that could be considered half a loaf. With that, I think we got a pretty good product in the end, and that is what we are seeking to have here. I would urge support of the amendment. Mr. Chairman, I yield back the balance of my time.

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

Mr. FLAKE. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, I am offering this amendment today with the gentleman from Idaho (Mr. Otter), my fellow co-chairman of the PATRIOT Act Reform Caucus. This amendment addresses two important issues regarding delayed notification of the so-called sneak-and-peek searches. The amendment removes the clause that allows judges, when deciding whether initially to grant a sneak-and-peek search, to allow it for the reason that it would unduly delay a trial to notify the target of the search. This amendment strikes ``unduly delaying a trial'' because we believe it is too low a standard to allow for a delayed notification search under the adverse impact clause of section 2705 of title XVIII. This amendment also requires on an annual basis that the Administrative Office of the Courts must report to the House and Senate Judiciary Committees on the number of search warrants granted and the number of delayed notices authorized. The AOC would also be required to indicate the cause of delay in each instance. This important information will help improve Congress' oversight role on delayed notification for so-called sneak-and-peak searches in the future by providing Members with this information on an annual basis. Again, I want to thank the gentleman from Wisconsin (Chairman Sensenbrenner) and his staff for once again working to address the concerns we had on delayed notification. I urge my colleagues to accept this amendment. Mr. Chairman, I yield 2 minutes to the gentleman from Wisconsin (Mr. Sensenbrenner).

Mr. FLAKE. Mr. Chairman, I thank the gentleman for yielding me this time. Let me just briefly thank the gentleman from Massachusetts for working on this amendment. In the committee, with regard to other bills that we have considered, one having to do with providing a death penalty for terrorist criminals, this issue came up as well. ``Domestic terrorism,'' is that too broad a term and how should it be applied? If one causes injury to a Federal building by mistake, are they then subject to these fines? And nobody really believes that the death penalty would be imposed in that case; however, the threat of something like that is out there, acts as a form of intimidation to people from engaging in lawful protest. So the overly broad definition does come up as a problem sometimes, and in this case it comes up as a problem when it has to do with seizure of assets. So I thank the gentleman for bringing this amendment forward. I am glad to join him and I am glad the chairman has articulated so well the need for this amendment.

Mr. FLAKE. Mr. Chairman, if the gentleman will continue to yield, there is a disagreement on what the court was actually ruling on, whether they were ruling on the access to counsel or, my understanding of it, whether or not the request itself was unconstitutional. If that is the case, let the legal process take its course. But I think what we need to do here is make sure that the agencies have the tools they need, offering the protections we are offering here.

Mr. FLAKE. Mr. Chairman, what the PATRIOT Act did was to move or to change the standard to relevance. There has to be a finding of relevance. If it is relevant to an investigation, then it is in my view proper they should be able to compel records.

Mr. FLAKE. Mr. Chairman, will the gentleman yield?

Mr. FLAKE. Mr. Chairman, I yield 2 minutes to the gentleman from California (Mr. Daniel E. Lungren), a member of the Committee on the Judiciary.

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

Mr. FLAKE. I reserve the balance of my time.

Mr. FLAKE. I yield to the gentleman from Wisconsin.

Mr. FLAKE. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, I am offering this amendment with my good friend, the gentleman from Massachusetts (Mr. Delahunt). I want to assure my colleagues that this amendment has nothing to do with exporting freedom to Cuba. We have teamed up on a few of those items. We are also teaming up with other Members of the PATRIOT Act Reform Caucus, the gentleman from Idaho (Mr. Otter) and the gentleman from New York (Mr. Nadler), on this amendment. The Flake-Delahunt-Otter-Nadler amendment provides critical reforms to national security letters. We have heard a lot about this today. First, this amendment specifies that the recipient of a national security letter may consult with an attorney and may also challenge national security letters in court. A judge may throw out the national security letter by request of the government ``if compliance would be unreasonable or oppressive to the recipient of the national security letter.'' The amendment also allows the recipient to challenge the nondisclosure requirement in the national security letter request. A judge could modify or remove the nondisclosure requirement of the national security letter ``if it finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with criminal counterterrorism or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.'' Another important reform to this amendment is that it modifies the nondisclosure requirements so that recipients may tell individuals whom they work with about the national security letter request in order to comply with the national security request. The amendment also contains penalties for individuals who violate the nondisclosure requirements of a national security letter and requires that reports on national security letters by Federal agencies to Congress must also be sent to the House and Senate Committees on the Judiciary so we can exercise proper oversight. Mr. Chairman, I would like to thank again the gentleman from Wisconsin (Mr. Sensenbrenner) and his staff in helping to write and to work with me on this amendment. It is important to strengthening the rights of average American citizens who receive these national security letters, and I urge my colleagues to accept this amendment.

Mr. FLAKE. Mr. Chairman, I yield myself such time as I may consume. Let me just conclude by thanking the chairman of the Committee on the Judiciary, the gentleman from Wisconsin (Mr. Sensenbrenner), for running a fair and thorough process. Much has been said about these things being rushed through. I can tell my colleagues that over the past 12 months or so, we have had 12 hearings on this subject, 35 witnesses. We have gone through this very thoroughly. On each of these sections that we are dealing with, we heard excellent testimony from the administration, from other witnesses, from experts in the field; and that is why these amendments have been crafted. We have sought to protect the civil liberties of Americans every bit as much as we can here, while offering effective tools for the war on terrorism, giving the administration the tools that they need to fight this war. I am persuaded that we have done well with this section, with section 215, that we have put the protections that we need in place; and I would urge my colleagues to support this amendment. Mr. Chairman, I yield back the balance of my time.

Mr. FLAKE. Mr. Chairman, I yield 1 minute to the gentleman from Wisconsin (Mr. Sensenbrenner), the chairman of the Committee on the Judiciary.

Mr. FLAKE. Mr. Chairman, I yield 1 minute to the gentleman from California (Mr. Daniel E. Lungren), another member of the Committee on the Judiciary.

Mr. FLAKE. Mr. Chairman, I yield 2 minutes to the gentleman from Indiana (Mr. Pence), a valued member of the Committee on the Judiciary (Mr. PENCE asked and was given permission to revise and extend his remarks.)

Mr. FLAKE. Mr. Chairman, I yield 3 minutes to the gentleman from California (Mr. Schiff), the cosponsor of the amendment. (Mr. SCHIFF asked and was given permission to revise and extend his remarks.)

Mr. FLAKE. Mr. Chairman, I yield myself 2 minutes. Mr. Chairman, I offer this amendment with my colleague the gentleman from California (Mr. Schiff), a Democrat. Mr. Chairman, this amendment simply states that the Director of the FBI must personally approve any library or bookstore request for records by the FBI under section 215 of the PATRIOT Act. This amendment provides a higher standard for the use of section 215 by the FBI. At a minimum, what it will prevent I think is some kind of fishing expedition that might be undertaken by an overzealous agent or official at the Bureau. Having the Director of the FBI sign off on the request, it also sends a signal to the library and bookstore owners that a request for information from the FBI is well thought out and comes from the highest level. This amendment compliments other amendments I have offered in the Committee on the Judiciary, two of which were accepted by the chairman and the committee. Those were: With regard to section 215, we clarified that if there is an inquiry, you not only as a respondent have access to an attorney to respond to the inquiry, but also to challenge it. The other had to do with another section in committee. We will stick with this one. With these two amendments on 215 combined, I think we have provided strong protections for the contested section of the PATRIOT Act. There has been a lot of attention, as has been noted here, across the country at this provision, which has been termed the library provision. It obviously has a lot more to do than with libraries. Libraries are not even mentioned in it. But we see the need to make protections to be sure that no overzealous agent at the FBI or anybody goes and searches somebody's library records or bookstore purchases. So that is what this amendment is prepared to do. Mr. Chairman, I reserve the balance of my time.

Mr. FLAKE. Mr. Chairman, I demand a recorded vote.

Mr. FLAKE. Mr. Chairman, I yield 2\1/2\ minutes to the gentleman from Idaho (Mr. Otter). (Mr. OTTER asked and was given permission to revise and extend his remarks.)

Mr. FLAKE. Mr. Chairman, I offer an amendment.

Mr. FLAKE. Mr. Chairman, I demand a recorded vote.

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, I thank the gentleman for yielding me time. Mr. Speaker, I just want to say that I am often critical of this process and have been known to be critical of the Committee on Rules on particular bills that have come through, but I have to say with this process and with the committee on which I sit, the Committee on the Judiciary, we have seen a very transparent, open process. We have had a series of 12 hearings over the past year, and we had a markup that went over 12 hours in which we considered more than 50 amendments, I believe, there. I was successful, with a few of my Democrat colleagues, in attaching a few amendments at that time. I believe there are four that have my name on it that have been approved for today. A few of them have to do with Section 215. Mr. Speaker, I am not unsympathetic to the concerns that the gentleman from Vermont (Mr. Sanders) has. I in fact voted for his amendment on the floor the other day with regard to 215 and library and bookstore searches and sales. I believe that we have addressed it sufficiently in this bill in the amendments that will be offered. We will offer an amendment later, myself and the gentleman from California (Mr. Schiff), that will require the Director of the FBI to actually sign off on any request for documents from a bookstore or library. That will help substantially. We also have another amendment to 215 we did in committee that clarifies it to make sure you can consult your lawyer, not just to respond to the order, but to challenge it as well. We have various other amendments that have been approved today, national security letters on the so-called delayed notification that have already been approved. I look forward to this process. I hope my colleagues will support this rule. I know it is a tough job the Committee on Rules has. I have worked, frankly, with a lot more Democrats than I have with Republicans on this issue over the past year. We formed the PATRIOT Act Reform Caucus, and a lot of us have worked very hard on these issues, and I am pleased to say that many of these amendments have been approved and will be offered today. Mr. Speaker, I would encourage my colleagues to support the rule.