F. Sensenbrenner

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Chairman, I reserve a point of order on the amendment.

Mr. SENSENBRENNER. Mr. Chairman, I rise in opposition to the amendment. Mr. Chairman, this amendment deletes the 5-year mandatory minimum sentence for a sex offender who crosses State lines to fail to register in the new State and also deletes the 5-year mandatory minimum for making false statements in a sexual abuse investigation. Let me say that the whole issue of the sentencing guidelines has been a very vexatious one. Earlier this year, the Supreme Court decided two cases that made the sentencing guidelines only advisory, rather than mandatory. So if this amendment is adopted, judges will be given the power to place on probation those who were convicted of not registering in a new State or making a false statement to law enforcement relative to a sexual abuse investigation. I do not think that probation is advisable in these instances, and that is why this amendment should be defeated. The most significant enforcement issue that exists today in the sex offender program is that over 100,000 sex offenders, or nearly one- fifth in the Nation, are ``missing,'' meaning they have not complied with the sex offender registration requirements. This typically occurs when the sex offenders move from one State to another. To ensure compliance with the registration requirements, States are required to inform the sex offender of his or her obligations and obtain a signed form indicating he or she understands those obligations and will comply with them. In order to address the problem of the missing sex offenders, that is, those who fail to comply with moving from one State to another, sex offenders will now face Federal prosecution with a mandatory minimum of 5 years. The combination of incentives for the sex offender to comply and stiff criminal penalties and additional law enforcement resources to focus on this problem should help address the overwhelming number of noncomplying or ``missing'' sex offenders in our community. The 5-year mandatory minimum penalty is a critical component of this new enforcement scheme, and this amendment punches a hole in that enforcement scheme and allows a loophole to have the current situation continue to fester. The mandatory minimum applies for a knowing violation that will help ensure that sex offenders comply with all registration requirements. Never again should our communities have to suffer from the fear of unidentified sex offenders in their communities, their schools, and their youth organizations. Similarly, the 5-year mandatory minimum for false statements made during a sexual abuse investigation is critical. The facts surrounding the Jessica Lunsford case in Florida demonstrate that time is of the essence and false statements can make the difference between life and death of a missing child. In the Lunsford case, three witnesses knew that John Couey, the alleged rapist and murderer of 9-year-old Jessica Lunsford, was living within 150 yards of Jessica's house but failed to tell investigators. If they had told the truth, maybe, just maybe, Jessica Lunsford would be alive today. A 5-year mandatory minimum penalty would ensure truthful and full cooperation by witnesses in such investigations. It is an important policy goal, and these penalties send a strong deterrent message. I strongly urge opposition to this amendment.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I think that the gentleman from Michigan (Mr. Conyers) makes a good point relative to the reimbursement of travel and subsistence expenses of parties, particularly those who may be indigent, and I think that we ought to look at this issue as time progresses, basically in seeing how far away criminal trials have to be moved away from New Orleans and the other places on the gulf coast where the courts are either impaired or not able to function in their chosen venues. However, I would point out that the Office of General Counsel For the Administrative Office of the Courts advises that jurors may obtain reimbursement for mileage, subsistence, and lodging expenses under this bill just as they may under normal circumstances. Similarly, there is the payment of travel and subsistence expenses for witnesses who will be available during the emergency special sessions under the bill. As far as the parties are concerned, particularly the indigent ones, I can give the gentleman from Michigan my assurance that we all will continue to work with the Administrative Office of the United States Courts, the appropriators, and the Senate on this point. I think the thing that we have got to do now is to get this bill enacted into law as quickly as possible so that the courts can be up and running to do their business even though their current facilities may still be under water. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from Texas (Mr. Smith), the chair of the Subcommittee on Courts, the Internet, and Intellectual Property.

Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 3650) to allow United States courts to conduct business during emergency conditions, and for other purposes.

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on H.R. 3650.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, every Member of this body is aware of the scope of the tragedy and destruction that Hurricane Katrina inflicted on the gulf coast region, and Congress has already taken several steps to bring relief to the affected States and their people. In addition to the thousands of private residences and businesses destroyed or rendered uninhabitable by the hurricane and subsequent floods, many entities of the Federal Government located in that region may not be able to operate for a time period that remains uncertain. The creation and maintenance of a court system that allows citizens to adjudicate disputes is a fundamental responsibility of government. The purpose of H.R. 3650 is to authorize Federal courts to conduct business outside of their statutorily defined geographic domains during times of emergency. It is critical that Congress enact the legislation expeditiously so that the affected courts in Louisiana, Mississippi, and Alabama may continue to function in the wake of Hurricane Katrina. The text of H.R. 3650 is substantially similar to section 15 of H.R. 1751, the Secure Access to Justice and Court Restoration Act of 2005, which the Subcommittee on Crime, Terrorism, and Homeland Security reported to the full Committee on the Judiciary on June 30. Mr. Speaker, the need for this legislation became tragically apparent following the terrorist attacks of September 11, 2001, and the impact of these disasters on court operations, particularly in New York City. In emergency conditions, a Federal court facility in an adjoining district or circuit might more readily and safely be available to court personnel, litigants, jurors, and the public than a facility at the place of holding court within the district. This is especially true in major metropolitan areas such as New York, Washington, D.C., Dallas, and Kansas City, where the metropolitan area includes parts of more than one judicial district. This legislation is also needed to address natural disasters. The recent impact of Hurricane Katrina on the Federal courts in Louisiana, Mississippi, and Alabama has increased the urgency of congressional action. Where court operations cannot be transferred to other divisions within the affected judicial district due to widespread flooding and destruction, judges must be empowered to shift court proceedings temporarily into a neighboring judicial district. The advent of electronic court record systems will facilitate the implementation of this authority by providing judges, court staff, and attorneys with remote access to case documents. The bill authorizes circuit, district, and bankruptcy courts that conduct special sessions outside of their respective geographic boundaries upon a finding that because of emergency conditions, no locations within the boundaries of those courts are reasonably available where such special sessions could be held. The Administrative Office of the U.S. Courts, or AO, is required to notify the House and Senate Committees on the Judiciary, as well as the Marshals Service when a court issues an order to conduct an emergency session. The AO must also follow up no later than 180 days after such an order expires by submitting a brief report to both committees summarizing why the order was issued, its duration, its impact on litigants, and its cost to the judiciary. The bill specifies that criminal trials may not be conducted outside the State in which a crime has been committed unless a defendant otherwise consents. This is consistent with the provisions of article III of the Constitution and the sixth amendment. With this one exception, a Federal court is empowered to conduct all business in a special session outside a district that it might otherwise conduct during a regular session. Given these constitutional constraints, however, jurors in criminal trials may only be summoned from ``any part of the district in which the crime has been committed,'' unless a defendant agrees to be tried by jurors from the district in which the court is holding a special session. Finally, United States magistrate judges are currently subject to certain territorial limitations on their powers imposed by the Federal Magistrates Act. The bill clarifies that magistrate judges can also participate in the emergency extraterritorial sessions of the district courts. Mr. Speaker, I urge my colleagues to support this bipartisan legislation to return a measure of continuity to the victims of Hurricane Katrina and the Federal Court system that serves them. Mr. Speaker, I submit for the Record a letter from the Justice Department in support of this legislation. Department of Justice, Office of Legislative Affairs, Office of the Assistant Attorney General Washington, DC, September 7, 2005. Hon. F. James Sensenbrenner, Chairman, Committee on the Judiciary, House of Representatives, Washington, DC. Dear Mr. Chairman: I am writing to express the views of the Department on H.R. 3650, ``The Federal Emergency Special Sessions Act of 2005.'' We support swift enactment of this legislation. This bill is drawn from other legislation currently being considered in the Congress that will permit Federal courts to conduct business in other locations in the event of an emergency situation. The need for this bill has been clearly demonstrated by the recent catastrophe caused by Hurricane Katrina, which has already caused extreme disruption to the courts. Passing this bill on an emergency basis will permit the Federal Courts to return to the Nation's critical business more quickly and more easily. The Department already has commented on similar provisions in prior legislation and some of our prior comments have been addressed in this bill. In future legislation, we will continue to seek refinement of the law in this area, particularly as it relates to the critical need for consultation and coordination between the Judiciary and the Marshals Service in the event of any serious emergency. Thank you for the opportunity to express our views. The Office of Management and Budget has advised us that from the perspective of the Administration's program, there is no objection to submission of this letter. Sincerely, William E. Moschella, Assistant Attorney General. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I have no further requests for time, and I yield back the balance of my time.

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

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from Ohio (Mr. Chabot), the chairman of the Subcommittee on the Constitution.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise today in support of House Resolution 423 which honors and recognizes the distinguished service, career, and achievements of Chief Justice William Hubbs Rehnquist upon his death. Mr. Speaker, the passing of Chief Justice Rehnquist means that a long and distinguished career has come to an end. William Rehnquist was born on October 1, 1924, in Milwaukee, Wisconsin and was raised in nearby Shorewood, Wisconsin, which currently lies in the congressional district I am proud to represent. The future Chief Justice attended Kenyon College briefly before joining the U.S. Army Air Corps during World War II. Following his career in the Army, Chief Justice Rehnquist attended and graduated from Stanford University, where he received a bachelor's and master's degree in political science and a second master's degree in government from Harvard University. At Stanford Law School, the future Chief Justice graduated first in the class that famously included his future colleague, Justice Sandra Day O'Connor. It was also at Stanford Law School that the Chief Justice met his future wife, Natalie ``Nan'' Cornell, whom he married in 1953. After graduation, William Rehnquist clerked for Supreme Court Justice Robert H. Jackson for the 1952 and 1953 terms. He then went on to practice as an attorney in his adopted home State of Arizona for several years before returning to Washington, DC, to serve as Assistant Attorney General for the Justice Department's Office of Legal Counsel, where he advised the Nixon administration on constitutional law from 1969 until 1971. On October 22, 1971, President Nixon nominated William Rehnquist to fill the vacancy on the United States Supreme Court created by Justice John Marshall Harlan's retirement. The Senate confirmed him to the post of Associate Justice on December 10, 1971, and he was sworn into office on January 7, 1972, at the age of 47. Under his leadership, federalism, judicial restraint, and State autonomy once again became staple features of the Court's jurisprudence. Chief Justice Rehnquist deeply respected the proper roles of each branch of government and the separation of powers envisioned by our Founders. He repeatedly acknowledged that the first amendment to the Constitution guaranteed the free exercise of religion. By the time President Reagan nominated him to become the 16th Chief Justice of the United States on June 20, 1986, to replace Warren Burger, the pieces were in place for the Chief Justice to make a profound impact on American jurisprudence. His commitment to his principles were evidenced in his majority opinion upholding Cleveland, Ohio's program of school vouchers, which allowed public school students in poor areas to use vouchers to attend better, and often religious, schools, against an Establishment Clause challenge. His support for freedom of religion was also evidenced in his concurring opinion of Elk Grove Unified School District v. Newdow, in which he rightly concluded that the phrase ``under God'' in the Pledge of Allegiance was not a violation of the Establishment Clause. Most recently, Chief Justice Rehnquist joined Justice O'Connor's dissent in Kelo v. City of New London in which they correctly concluded that it is a violation of the fifth amendment's Public Use Clause when a government takes private property and gives it to another private entity to use for private commercial purposes. Apart from the doctrinal changes the Chief Justice brought to the Court, he also streamlined the manner in which the Court operated. His keen intellect and evenhandedness were appreciated by all of his colleagues. On the 30th anniversary of Rehnquist's swearing in, Justice John Paul Stevens, who often found himself on the opposite side of opinions from the Chief Justice, praised him for the ``efficiency, good humor, and absolute impartiality that you have consistently displayed when presiding at our conferences.'' These traits have led observers of all political persuasions to view Chief Justice Rehnquist as one of the most consequential jurists in our history. When Chief Justice Rehnquist was diagnosed with thyroid cancer in October of 2004, many of his admirers feared that his tenure on the Court would come to an end. The Chief Justice, however, had other plans and continued to make his presence felt on the Court even as he battled his disease. Unfortunately, last Saturday, Chief Justice Rehnquist lost that battle, and the country has lost a great intellect and a great public servant. His decision to swear in President George W. Bush last January while battling his illness inspired millions of Americans. From a personal standpoint, let me say that I first met the future Chief Justice back in 1968 going door-to-door while running for a seat in the Wisconsin Assembly, and when I knocked on his parents' door, they introduced me to the Chief Justice-to-be, and he and I have kept contact up for a number of years until he passed away, both before he was selected for the Court and I was elected to the Congress. As the chairman of the Committee on the Judiciary, let me say that I deeply appreciated the Chief Justice's invitations to address the twice-yearly meetings of the Judicial Conference of the United States on issues relating to the separation of powers and the interrelationship to how the laws the Congress passes relate to the operation of the third branch of government. I can say that the Chief Justice was extremely responsive when I had complained that the Judicial Discipline statute enacted in 1980 was not being utilized properly and effectively in terms of disciplining judges in the appeals court and in the lower Federal courts that may have strayed from the bounds of propriety and the ethical standards that we hope all of the judges will uphold. I can say that probably one of my most profound memories of the Chief Justice was at a Judicial Conference meeting on the morning of September 11, 2001, where, because I had the first three bills up on the floor at 10 o'clock, the Chief Justice put me on first. At that time the Twin Towers had both been hit, and the Chief Justice came in, sat down and said, ``Jim, make this snappy. Something bad is going on.'' So my remarks got condensed to a minute and a half and the Chief Justice said, ``There are no questions of the chairman, are there?'' And everybody else in the room got the message, so I was then excused, and when I got here to the Capitol to make the three motions for suspensions of the rules, the Pentagon had already been hit. So the Chief Justice, I think, was advised that we were all in danger, he wanted to get the business done despite the danger, and he was able to do that. I think that this shows his character, and it is a way that touched me in an extremely personal way. While the country has lost so much, his family, including his children James, Nancy, and Janet, and his six grandchildren have lost a loving family member as well. I know that the whole House will join me in extending our condolences to his family and our thanks for his great service to this country. I hope that all Members will join me in supporting House Resolution 423 honoring, recognizing, and expressing our gratitude for the distinguished service, career, and achievements of Chief Justice William H. Rehnquist. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Texas (Mr. Gohmert).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from North Carolina (Mr. Coble).

Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, pursuant to the order of the House entered into previously today, I call up the resolution (H. Res. 423) honoring and recognizing the distinguished service, career, and achievements of Chief Justice William Hubbs Rehnquist upon his death, and for other purposes, and ask for its immediate consideration.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on House Resolution 423.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that it shall be in order at any time to consider in the House the resolution (H. Res. 423); the resolution shall be considered as read; and the previous question shall be considered as ordered on the resolution to its adoption without intervening motion or demand for division of the question except: (1) 1 hour of debate equally divided and controlled by the chairman and ranking minority member of the Committee on the Judiciary; and (2) one motion to recommit.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I wish to include in the Congressional Record an explanation for my decision not to participate in legislative consideration of H.R. 5, the ``Help Efficient, Accessible, Low-Cost, Timely Healthcare (`HEALTH') Act of 2005.'' House Rule III(1) states: Every Member . . . shall vote on each question put, unless he has a direct personal or pecuniary interest in the event of such question. House precedents establish that ``where the subject matter before the House affects a class rather than individuals, the personal interest of Members who belong to the class is not such as to disqualify them from voting.'' As a result, House precedent has held that a Member's ownership of common stock in a corporation, ``was not, under House precedents, sufficient to disqualify him from voting on'' legislation that benefitted the corporation in which that Member held stock. I currently own shares in at least two corporations that may benefit from the enactment of H.R. 5. Shares of these corporations are generally held, and do not represent ``uniquely-held'' financial interests. As a result, my participation in legislative consideration of H.R. 5 would not appear to violate current House Rules and established precedent. However, as in all matters susceptible to subjective examination, there are no bright line rules to determine whether a Member should not participate in legislation that may benefit that Member in a personal or financial manner. In common parlance, the term ``conflict of interest'' is subject to various interpretations. However, the House Ethics Manual states that this term ``is limited in meaning; it denotes a situation in which an official's conduct of his office conflicts with his private economic affairs.'' The House Committee on Standards of Official Conduct has admonished all Members ``to avoid situations in which even an inference might be drawn suggesting improper action.'' The Committee on Standards and Ethics has also endorsed the principle that ``each individual Member has the responsibility of deciding for himself whether his personal interest in pending legislation requires that he abstain from voting.'' I have concluded that my holdings in at least two corporations that may benefit if H.R. 5 is enacted into law, coupled with my Chairmanship of the Committee of primary jurisdiction over this legislation, raise legitimate questions concerning whether my participation in this legislation conflicts with my private economic affairs. While this may be a gray area, questions concerning whether my participation in legislation may raise the appearance of a conflict of interest must be subject to no doubt. As a result, I wish to forcefully dispel any appearance of such a conflict by recusing myself from legislative consideration of H.R. 5. Participation in the political process, particularly voting on legislation, is central to maintaining the official responsibilities to which Members of Congress are sworn. In all of my public life, I have striven to energetically and conscientiously discharge my official responsibilities while preserving the public trust and confidence I have been elected to uphold. While House rules may provide an important benchmark for determining the propriety of a Member's decision to vote on legislation before the House, nothing can substitute for a Member's conscience. For this reason, I hereby recuse myself from participation in legislative consideration of H.R. 5 during the 109th Congress.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Chairman, I rise in support of the Berman- Delahunt amendment. All it does is require a report to Congress on data mining by agencies. Let me say why this is important. At the end of the last decade, before 9/11 and before the PATRIOT Act was even considered, the FBI had set up a data-mining operation that went far beyond criminal and intelligence investigations and compromised the privacy of literally millions of Americans, and this was done without the knowledge of the Congress of the United States, and it was only as a result of the fact that it did not work and they wasted all of this money that the Congress found out about it. So I think that before any of the agencies go down this route, there ought to be at least a tip-off to the Members of Congress. I grant the Members that the amendment probably is not properly drafted and we can fix this in conference, and I appreciate the commitment of the chairman of the Permanent Select Committee on Intelligence to do that, but I do not think we should turn it down and send a message to the agencies that they can data mine all they want and we are not going to do anything about it.

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

Mr. SENSENBRENNER. Mr. Chairman, I support the gentleman's amendment and I hope we can adopt it fairly quickly. What this amendment does is simply add the following predicates to allow law enforcement to go to a judge to seek a wiretap order: Crimes of terrorism such as arson, plastic explosives, attacks on a Federal facility with firearms, and conspiracy to harm persons or property overseas. I think all of these are legitimate predicates. I would hope the gentleman's amendment is adopted, and thank him for yielding.

Mr. SENSENBRENNER. Mr. Chairman, I yield 2 minutes to the gentleman from Florida (Mr. Stearns). (Mr. STEARNS asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Chairman, I support this amendment. I do not think that there should be a delayed notification warrant excuse for unduly delaying a trial, but we have heard an awful lot about delayed notification warrants here. Let me again repeat the fact that delayed notification warrants were not created by the PATRIOT Act when it was passed 3\1/2\ years ago. It was existing law for drug-trafficking and racketeering investigations, and the PATRIOT Act only expanded it to include terrorism investigations. Mr. Chairman, I would like to give Members today a very vivid pictorial example on how these warrants work. Using a delayed notification search warrant, the DEA and other Federal agents entered a home along the border between Washington State and Canada on July 2, 2005, because there was information that the first-ever tunnel under the border between Canada and the United States has being used for drug trafficking. What did they find? They found a very sophisticated tunnel, and took a picture of it. There were various camera devices and listening devices that the agents put into this tunnel, and they ended up finding that the tunnel had been used to transport 93 pounds of marijuana from Canada into the United States. This is a picture of the U.S. entrance to the tunnel on our side of the border, very close to Canada. It probably is best described as the U.S. exit. But on the Canadian side of the border the entrance to the tunnel was in a building. So the contraband was stored in this building, was put into the tunnel, taken underneath the border and exited in the United States. Now, the tunnel that I showed in the first picture was big enough to smuggle terrorists across the border, should it be used for that purpose. All this ended up being exposed as a result of a delayed notification warrant. The amendment is a good one; so are delayed notification warrants.

Mr. SENSENBRENNER. Mr. Chairman, I yield back the balance of my time.

Mr. SENSENBRENNER. Mr. Chairman, I yield 2 minutes to the gentleman from Florida (Mr. Feeney).