Jerrold Nadler

Mr. NADLER

Mr. NADLER. Mr. Speaker, I yield 3 minutes to the gentleman from Arizona (Mr. Kolbe).

Mr. NADLER. Mr. Speaker, I yield 1\1/2\ minutes to the distinguished gentlewoman from California (Ms. Linda T. Sanchez).

Mr. NADLER. Mr. Speaker, I yield 3 minutes to the gentleman from Massachusetts (Mr. Meehan).

Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise today in support of marriage, in support of families, and in support of national unity. I rise against this proposed constitutional amendment, against the drumbeat of election- year political demagoguery. This amendment does not belong in our Constitution. It is unworthy of our great Nation. The Senate could not even muster a simple majority to consider it, much less the requisite two-thirds to adopt it. We have amended the Constitution only 27 times in our history, the first 10 of them, the Bill of Rights, in 1791. Constitutional amendments have always been used to enhance and expand the rights of citizens, not to restrict them. The Bill of Rights, which was added in 1791, protected freedom of speech, freedom of religion, freedom of assembly, the right to be secure in our homes. Ten amendments protecting individual rights and liberties. We amended the Constitution to permanently wipe away the stain of slavery, to expand the right to vote, to expand the rights of citizenship and to allow for the direct election of senators. Now we are being asked to amend the Constitution again, to single out a single group and to say to them for all time, you cannot even attempt to win the right to marry. This amendment was introduced last month. We have never held hearings on it. The Judiciary Committee has never considered it. Never. Don't let anyone tell you that the Judiciary Committee considered it in 2003. We did not. That was a different amendment we considered. But what is the Constitution between friends when there is an election coming up? From what precisely would this amendment protect marriage? From divorce? From adultery? No. Evidently, the threat to marriage is the fact that there are millions of people in this country who very much believe in marriage, who very much want to marry but who are not permitted to marry. This amendment, contrary to what we have heard, doesn't block activist courts from allowing people of the same sex to marry. It would also prevent their fellow citizens from deciding democratically to permit them to do so, whether through the legislative process or even through a referendum of the people. And why is it requisite on Congress to tell any State that the people of that State may not make up their minds for themselves on this question? Why is it necessary for the Federal Government to amend our Constitution to say to Massachusetts, which is going to hold a referendum on this subject in 2008, you may not do so because we have decided this for you? Mr. Speaker, I have been searching in vain for some indication of what might happen to my marriage, or to the marriage of anyone in this room, if loving couples, including couples with custody of children, are permitted to enjoy the blessings of matrimony. If there is a Member of this House who believes that his or her own marriage would be destroyed by someone else's same-sex marriage somewhere in America, I would welcome an explanation of what he or she thinks would happen to his or her marriage and why. Are there any takers? Anyone here who wants to get up and say why they believe their marriage would be threatened if two other people are permitted to marry? I didn't think so. The overheated rhetoric we have been hearing is reminiscent of the bellicose fear-mongering that followed the Supreme Court's decision almost 40 years ago in Loving v. Virginia which struck down State prohibitions against interracial marriage. The Supreme Court had overstepped its authority, we were told. The Supreme Court had overridden the democratic will of the majority, the Supreme Court had signed a death warrant for all that is good and pure in this Nation. Fortunately, we survived as a Nation and we are better for that Supreme Court decision. I believe firmly that in the not-too-distant future people will look back on these debates with the incredulity with which we now view the segregationist debates of years past. I think the public opinion polls are indicative: Opposition to gay marriage is a direct function of age. The older people are, the more set in the ways of the old discriminatory practices of this country they are, the more they oppose gay marriage. If you take a poll of people under 35 years old, 70 to 75 percent are in favor of allowing gay marriage. That is the trend for the future because demographics is destiny. Mr. Speaker, this amendment actually does more than it purports to do. It would not only preempt any State law allowing people of the same gender to marry, even if that law was approved by the legislature or by referendum, it would preclude any State from extending medical visitation privileges or inheritance rights, for example, to same-sex couples. That is what ``the incidents thereof'' in the amendment means. Proponents of this amendment have already tried to use a similar prohibition against same-sex marriage to attack in court domestic- partner benefits. So when they tell you this is only about marriage, don't believe it. No court has required that a marriage in one State be recognized in another, so don't believe anyone who tells you that this amendment is meant to protect your own State laws. The Defense of Marriage Act which passed this Congress and which the President signed in 1996 says no State can impose its marriage laws on another. There are many loving families, Mr. Speaker, who deserve the benefits and protections of the law. They don't live just in New York or San Francisco or Boston, they live in every one of the 435 congressional districts of this great country. They are not from outer space, they are not a public menace, and they do not threaten anyone. They are our neighbors, our coworkers, our friends, our siblings, our parents, and our children. They deserve to be treated fairly. They deserve the same rights as any other family. I regret that this House is being so demeaned by this debate. It saddens me that this great institution would sink to these depths to have what we have already heard on this floor and to what we will hear that amounts to pure bigotry against a minority population, even on the eve of an election. We know this amendment is not going anywhere. We know this is merely a political exercise. Shame on this House for playing politics with bigotry. Mr. Speaker, I reserve the balance of my time.

Mr. NADLER

Mr. NADLER. Mr. Chairman, today we will vote on the most fundamental of American values, the right to cast a meaningful vote in a free and fair election. We have declared to the world that this is what we stand for. It is what we have insisted other nations do. We have made great progress, but that work is not finished. It is impossible to review the record without concluding that the Voting Rights Act is responsible for much of that progress, and that it is still necessary and will be for the foreseeable future. Section 5 is not, as some would argue, a punishment but a remedy. It protects voters from being disenfranchised. It is in place because local governments have a long history of disenfranchising Americans that continues right up to the present time, as the shameful attempts by the States of Georgia and Texas to restrict voting participation, which had to be knocked down by the Federal courts as recently as yesterday, clearly shows. This makes particularly unfortunate attempts led by some Members from those States to restrict the reach of section 5, and I say that as a representative of New York City, which is also covered by section 5, and should be. Some would eliminate the English language voting assistance provisions of section 203. The same arguments used to justify literacy tests in prior years are now being recycled to exclude American citizens with limited English proficiency. I urge my colleagues not to allow a small group to drag this Nation back to the days of Jim Crow voting. If we are to be a beacon of democracy to the world, then we must stand by our own values. I urge my colleagues to reject these divisive amendments. Do not water down the Voting Rights Act; do not turn our backs on one of the glory pages of this House. Reenact the Voting Rights Act without watering it down.

Mr. NADLER

Mr. NADLER. Mr. Speaker, I ask unanimous consent to address the House for 5 minutes.

Mr. NADLER. Mr. Speaker, the Bush administration constantly crows about protecting us from terrorists, but when you get down to nuts and bolts it is clear that the administration and the Republican leadership of this Congress have no idea what they are doing. Just yesterday, terrorists killed more than 180 people by attacking the mass transit system in Mumbai, India. You had better believe that every one of the 4 million subway riders in New York took a deep breath before getting on the train this morning. New Yorkers know that, when terrorists strike, they go after high density, high profile targets. Every time you read in the newspapers that a terrorist abroad has been apprehended, you find the plans to strike at the United States are of Washington or New York, the maps in their possession or on their computers are of New York. Evidently this is yet to dawn on the Department of Homeland Security. Their ignorance is nothing short of disgusting. We need to step up not only the distribution of funds to the right places, to the targets in this country, we need to step up rail security protections in this country. The Democratic Rail and Transportation Security Act proposes to appropriate $400 million a year for the next 6 years for a grant program to beef up the rail and public transportation security on our mass transit systems in the country as a whole, New York and elsewhere, but the administration and the Republicans in Congress say no. The Democrats propose to spend $150 million over the next 3 years for advanced research and development to find more advanced solutions to the security threats faced by rail and public transportation systems. Again, the Bush administration and the Republicans in this Congress say no. We ought to be spending roughly $26 million a year over the next 6 years to hire 200 new rail security inspectors per year. Is this really necessary? You bet. Right now there are only 100 rail security inspectors for the whole country. We need to increase our intelligence efforts to prevent attacks, develop plans to respond to attacks, and ensure the timely restoration of our rail infrastructure should an attack occur. The Democrats have advanced plans to do this, while the Republican leadership of this Congress and this administration waste their time designating insect zoos and bean festivals as terror targets as was revealed in the front page of the New York Times today from the list of targets on the Homeland Security target list. Is there no end to their incompetence? First they cut funding for the prime target in this country, New York, by 40 percent. Then they declare an excuse that New York contains no national landmarks or icons, and now we learn they are designating a kangaroo conservation center as a key terrorist target. There is no excuse for short-changing this country's top targets. As the Inspector General has wisely determined, folksy appeal cannot be the chief criterion for the allocation of anti-terrorist funding. It has been over 1 year since terrorists struck London's mass transit system, over 2 years since the rail bombings in Madrid, yet little has been done in the United States to protect our rail and mass transit systems. This administration, the leadership of this Congress must open its eyes to reality and put our resources where they are really needed before we have another catastrophe, a preventable catastrophe, on our hands. And then it will be little comfort to know that the blame lies with the administration and the Republican leadership of this Congress. We don't want to be laying blame. We don't want to be saying it is their fault. We want to prevent it. So let us learn a little, and let us pray that the administration and the Republican leadership of this Congress has their heads examined and opened their eyes.

Mr. NADLER

Mr. NADLER. Mr. Speaker, today we see how a great Nation loses its freedom. This resolution seeks to chill free speech by punishing the New York Times and other publications for doing their job. That is unacceptable and, frankly, beneath the dignity of the United States Congress. All of us here took an oath to support and defend the Constitution. Yet those pushing this resolution seek to do just the opposite: to batter the Constitution's most hallowed pillar, the right of free speech and a free press. Rampant lawbreaking by the Government, secrecy and selective leaks of classified information to cover up that illegality, and threats of retaliation and prosecution against anyone who dares to tell the truth. How has the Republican Congress responded? Have they lived up to their responsibility to get to the truth? To subpoena administration officials or records? To hold anyone accountable? No. The lapdog Republican Congress has worked hand and glove with the Karl Rove White House to cover up the administration's lies and crimes. The Republican Congress, with the chorus of cooperating media, has helped the administration retaliate against anyone who challenges them or tries to tell the American people the truth. Does Osama bin Laden know that we had tapped into his phone lines? Of course. The administration leaked it to the Washington Times which published it. Any outrage here? No. Did the White House leak the name of a CIA agent to friendly reporters to retaliate against a critic? Yes. Did the President promise to fire anyone who leaked? Yes. Now that we know it was the Vice President and Karl Rove, did the President make good on his promise? Of course not. Does anyone here really think that Osama bin Laden didn't assume we were tracking bank transactions? Administration officials have testified before Congress that they did, and, for those members who read bills before they vote, we required the administration to do just this in the PATRIOT Act. Not a big secret. Do you really think the terrorists didn't know we would be tapping their phones? The only people who were kept in the dark were the American people who were never told that their privacy was illegally being invaded by the government. Bin Laden doesn't care if the government gets a warrant, but law abiding citizens should and they have a right to know that, even if the President tries to cover it up. If the President breaks the law and covers it up, if the Congress refuses to get the truth and joins the cover-up, then the free press is the only guardian of truth and democracy. That is why Thomas Jefferson said he would prefer a free press without a government to a government without a free press. Free speech and a free press are what keep a Nation free. Is it espionage to tell the American people that the President is breaking the law? Is it treason to report the truth? Of course not. It is the duty of a free press to tell the truth especially when people in power would prefer that the American people be kept in the dark. Think of the thousands of young people who might still be alive if the press had more carefully scrutinized the lies and distortions used to lead this Nation to war in Iraq. Would we know about the illegal use of torture if the press hadn't uncovered it? Would we know that the government was spying on innocent citizens without a warrant? No President should be able to cover up his wrongdoing just by declaring it ``secret.'' That is what some here are suggesting. We are a great and free Nation because the Government can't put you in jail simply for telling the truth, and the Government can't use its prisons to cover up its crimes. A lawless President cannot hide behind the law. A cover-up Congress cannot complain if the truth gets out. What sort of countries prosecute journalists? What sort of country hates free speech? Countries whose governments fear the truth. Stalin locked up journalists. So does China. Free nations do not. As Justice Brandeis wrote, ``Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants.'' Once again, the administration and its apologists tell us that this activity was legal and the leak helps the terrorists. How do we know this? Because they say so and tell us to trust them. After six years of lies and cover-ups, of law breaking and leaking, this administration and the Republican Congress cannot be trusted. Let's get the facts. I haven't seen them, and I don't think the members who will be voting today have either. We only know what we read in the papers. The American people deserve better from their representatives. They deserve and demand the truth. Thank G-d we have a free press. Thank G-d we are still a free people. If the Republican Congress is afraid to get to the truth, someone else will have to do it for them. For now, we have a free press. Perhaps next year we will have a Congress willing to assume its constitutional duties now abandoned by the lap-dog Republican Congress.

Mr. NADLER

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

Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, this amendment can be very simply summed up simply by reading the one sentence of it. None of the funds made available in this Act may be used for the purpose of enforcing the final judgment of the Federal District Court for the Southern District of Indiana issued in Hinrichs v. Bosma. I listened to the distinguished gentleman from Indiana as he told us why he disagrees with this, the judgment of the court, of the Federal court of Indiana and why he thinks the court is wrong. He is entitled to his opinion. But let the litigant appeal the decision. That is why we have courts. The Soviet Union under Stalin in 1936 adopted a constitution. That constitution had a bill of rights, freedom of speech, freedom of association, freedom of the press, freedom of religious and anti- religious propaganda, as they quaintly put it. The problem, of course, was that if you tried to assert the rights they shot you instead of letting you go to court. No rights are worth anything. There is a maxim in the law, there is no right without a remedy. No right is worth anything if you can't enforce that right. The way we enforce rights in this country is in courts. We tried it a different way once. We had a civil war. Either Mao is right, that power comes out of the barrel of a gun, or we do it the way we do in this country. We obey court orders. When a court says something unpopular, you shall not have Jim Crow segregated schools in the South, we obey the law. The President sends in the National Guard in Little Rock in 1957 if he has to. No matter how unpopular the court's decision is. And here we have an amendment that says, because we disagree with a given decision of a local court, a Federal court in Indiana, no funds will be expended to enforce that decision. That way lies tyranny, Mr. Chairman. If the gentleman from Indiana doesn't like the opinion, it should be appealed. And if he still doesn't like it, if he doesn't like the final judgments, let him bring an amendment to the Federal Constitution to this body. We can amend the Constitution. But to say that when a court has decided on a matter of rights, the court has decided that something or other, I am not sure what this case was about, but something or other, some action that someone was taking violated some plaintiff's civil rights, that we should say that no funds will be expended to obey the court order to protect the civil rights of whoever the plaintiff was that the court found that somebody was violating; that some agency of government was violating someone's rights. The Court said that that is the case and, therefore, they should stop it; and we should say, no, no, no? No funds should be used to enforce the order of the court because the victim of the discrimination or the violation of civil rights is unpopular, unpopular with our constituents or unpopular on this floor? The whole point of religious liberty is that it is not subject to a popularity contest. Minority religions have the right to be protected. Your liberty is protected because you are an American, because we value liberty, not because you can win a vote on the floor of the House or the Virginia Legislature or the Indiana Legislature. It is absolutely destructive of the structure of our society, the structure of our government and of our guarantees of liberty to say, with regard to any court order, I am not going to defend this court order because I don't know much about it. But to say we will not allow the expenditure of the funds to enforce a court order, that is not our judgment. If you want to destroy the Constitution, destroy the Constitution, destroy the Bill of Rights, vote for this bill. I reserve the balance of my time.

Mr. NADLER. Mr. Chairman, I rise to claim the time in opposition.

Mr. NADLER. Mr. Chairman, I yield back my time.

Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, this amendment prohibits any funds from being used to issue National Security Letters to health insurance companies to obtain people's private and personal medical records. Currently, under section 505, any FBI field office director can demand your personal medical records without a warrant or any judicial approval and the insurance company is legally required to give it to them and is legally prohibited or gagged from telling you or anyone else about the order. Last year, almost 10,000 unreviewed National Security Letters were issued by the FBI without showing any connection between the records sought and any suspected foreign terrorist. Post PATRIOT Act reauthorization, I remain very concerned, because National Security Letters are still issued without court approval simply on the letter's assertion that the request is relevant to a national security investigation, without any showing of a connection to a suspected terrorist. The right to challenge the gag order is not real, since the government's mere assertion that lifting the gag order would pose a threat to national security must be treated by the court as conclusive, with no evidence necessary as to the truth of that assertion. Government officials already have access to so much of our personal information, such as credit reports, library user, and telephone communications. Do we want the government to have such unchecked access to personal and private information as revealed by our medical history: psychiatric profiles, lab studies, and diagnostic tests like CAT scans and MRIs? If somehow your medical records are necessary in fact to a terrorist investigation, the government should be required to explain to a judge why they are needed, as is provided in section 215 of the PATRIOT Act, rather than simply allowing an FBI field agent to demand those records in secret. The FBI already has far-reaching compulsory powers to obtain documents when it is investigating terrorism under both its criminal and intelligence authority. The FBI can obtain a search warrant if there is judicial finding of probable cause that a crime has or will be committed. The FBI can use Grand Jury subpoenas; and, in terrorism cases, the FBI has sweeping authority to obtain all the records, including medical records, under section 215 of the PATRIOT Act. But it has to go to a judge. Given these existing search powers, there is no reason to authorize the FBI to issue unchecked National Security Letters demanding medical records without any showing of anything to a judge. Mr. Chairman, if you have visited a doctor's office or a hospital in the last few months, you may have seen a notice telling you that your medical records may be turned over to the government for law enforcement or intelligence purposes. We can all agree that giving the FBI access to our most intimate private information is too great an intrusion on our privacy to leave unlimited and unsupervised. There may very well be reasonable legitimate reasons for the FBI to need this information in terrorist investigations. Section 215 of the PATRIOT Act provides for them to get that information if they simply go to a judge and tell them why they need it. The NSLs, which this amendment would stop, or would say you can't spend money on, skips the necessity of even going to a judge in private, in secret, and saying why they need that. Let them use section 215. We had almost a majority on this floor to eliminate section 215, but at least that requires a showing to a judge. The National Security Letters allows any FBI field office director to get these most private records without any showing to a judge. That is wrong, and I urge my colleagues to vote for this amendment. Mr. Chairman, I reserve the balance of my time.

Mr. NADLER. Mr. Chairman, I would like to hear what Mr. Lungren has to say before I use the balance of my time.

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

Mr. NADLER. I yield 30 seconds to the gentleman from Rhode Island (Mr. Kennedy).

Mr. NADLER. Mr. Chairman, I yield myself the balance of my time. Mr. Chairman, I respect everything that the gentleman from Virginia said. 9/11 happened in my district. Terrorism is terrible. We are waging a war against it, and we have to wage that war against it, and we have to protect ourselves. The question is intelligent protection. The FBI should not have the right to get our medical records without going to a court. That is what this question is about. Should they have the right to get these records simply on an assertion or a letter that nobody even has to look at, that it is simply relevant to an investigation, without going to court? Yes, certain protections were put into the bill. Those protections are insubstantial. For example, you can challenge the gag order. Yeah, but if the government says that lifting the gag order would harm national security, that assertion must be taken as dispositive. The court can't say, really? The court can't say, what evidence? For all practical purposes, they have an absolute right to these records without showing them to a court. I am not saying they should not get the records. My amendment doesn't say they shouldn't get the records. What it says is a general principle, one that we should always adhere to, if they think they need the records for a terrorist investigation, go to a court, go to a FISA court, go to a secret court. Use section 215 of the PATRIOT Act. But we shouldn't allow the FBI to have access to private records without some showing in court of necessity of probable cause or something. That is why this amendment should pass.

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

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

Mr. NADLER. Mr. Chairman, I appreciate the gentleman yielding. I would simply like to point out that this amendment differs fundamentally from the Sodrel amendment that we heard a few minutes ago. The Sodrel amendment is subject to the disparaging comments that the gentleman from Virginia just made, because the Sodrel amendment does say no funds herein appropriated shall be used to enforce the court decision in a certain case and says we are not going to enforce a court decision. The Hinchey amendment doesn't do that. Nor does the Hinchey amendment, contrary to what we heard from the distinguished chairman, overturn a Supreme Court decision. The Supreme Court decision in this case said you may do something. You may execute a search warrant without knocking. What this amendment says is, because we may doesn't mean we should. So what the gentleman's amendment is saying is, despite the fact that the Supreme Court gave us permission to do this, we will deny funding to do this because we don't think it is right. So the gentleman's amendment is not overturning an Supreme Court decision. It is saying, thank you for the permission; we choose not to exercise the permission you gave us. It is very different from the Sodrel amendment, which says do not enforce the court order. Do not spend any money enforcing the court order. That is subversive of the Constitution. That is subversive of a liberty. Mr. Hinchey's amendment, whether you agree with it or not, does not subvert the court order, does not subvert what the court said, and simply says, what you gave us permission to do, we choose not to do.

Mr. NADLER. Mr. Chairman, how much time do I have left?

Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume. First of all, I want to make it clear, I am just reading this revised amendment. This should increase the Jessica Gonzales program. It should put money into that by $5 million and reduce by $5 million the general administration salaries and expenses. I want to make clear that that is the intent of the amendment. The Nadler-Capps amendment will increase the funding for the Jessica Gonzales Victim Assistance Program by $5 million. The offset is from the Department of Justice general administration account. The Jessica Gonzales program places special victim assistants to act as liaisons between local law enforcement and victims of domestic violence in order to improve the enforcement of protection orders. The current system has undermined the effectiveness of protective orders. Last year, the Supreme Court decided the case of Jessica Gonzales, who had obtained an order of protection against her violent husband. Despite Ms. Gonzales' numerous pleas to the police to arrest her husband for violating the order, even providing the police with information on his whereabouts, the police failed to do so. Mr. Gonzales then murdered their three children. When Ms. Gonzales sued the police for their failure to protect her and the children by enforcing the protective order, the Supreme Court ruled the police did not have the mandatory duty to enforce the order by making an arrest. The Jessica Gonzales Victim Assistance Program restores some of the effectiveness of restraining orders that the Supreme Court destroyed with this ruling. This is the first opportunity to fund this program which was authorized last year in the Violence Against Women Reauthorization Act. The Jessica Gonzales Victim Assistance Program will help enforce restraining orders and protect women who are victims of domestic violence. I, therefore, urge my colleagues to support the Nadler-Capps amendment to provide it with more adequate funding. Mr. Chairman, I reserve the balance of my time.

Mr. NADLER. I will take the balance of my time. Mr. Chairman, I will simply say again, it is extremely subversive of liberty, of civil rights, of civil liberties to vote for this bill. I cannot recall a worse bill. To say that we won't enforce a court order because we don't agree with the court, change the judges. You have got the President. Amend the Constitution if you think it is that bad. But don't say that we are going to usurp the function of the courts and let somebody who went to court, exercised his American right to go to court, won in court, and we are going to shaft him and say your rights are violated. The court found your rights are violated, but we, because you are unpopular, we won't let the court enforce your rights. We will take the money away. For shame. Vote against this amendment.

Mr. NADLER. Mr. Chairman, I thank the gentleman, and I yield 2\1/2\ minutes to the gentlewoman from California (Mrs. Capps), the cosponsor of the amendment.

Mr. NADLER

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