F. Sensenbrenner

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, the motion to recommit is not germane to the original text of the House Joint Resolution 10. House Joint Resolution 10 proposes an amendment to prohibit the physical desecration of the flag of the United States. The material proposed to be inserted in the motion to recommit, sections 2 and following, has nothing to do with the subject of prohibiting the physical desecration of the flag and, thus, is not germane under the rules of the House.

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

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, throughout the history of this Republic, the Congress has proposed constitutional amendments and sent them to the States to overturn Supreme Court decisions that were particularly onerous. The one that comes to mind as coming to the top of the list was the Dred Scott decision. That was based on constitutional grounds, and Congress proposed and the States ratified three amendments, the 13th, 14th and 15th amendment, to make sure that the mistake that was made by the Dred Scott decision would never be repeated again. There was a decision early in the country's history under the Constitution that related to the judicial power of the United States. The 11th amendment was proposed and ratified to correct that. And the Supreme Court also decided that levying income taxes violated the provision of the Constitution on apportionment of taxes, and the 16th amendment was proposed and ratified to correct that problem. So when there is a court decision that has resulted in consequences that the Congress and the States collectively deem are so bad that it requires an amendment to the Constitution, this Congress has not hesitated to propose an amendment to the Constitution, and the States have ratified it. Here we have had resolutions of all 50 State legislatures asking that we propose this amendment and send it to the States for ratification, and that is because the instances of flag desecration that have occurred have been deemed by them to be over the line and that the Supreme Court of the United States was wrong in its decision and it needs correction. I just go back to the quote that I made of the Wisconsin Supreme Court when they effectively invalidated my State's flag desecration amendment. It is up to the people through the constitutional amendment process to make the correction, and that is why we are here today. Mr. Speaker, I yield 1 minute to the gentlewoman from Michigan (Mrs. Miller).

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from Indiana (Mr. Buyer).

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from Indiana (Mr. Pence). (Mr. PENCE asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 330, I call up the joint resolution (H.J. Res. 10) proposing an amendment to the Constitution of the United States authorizing the Congress to prohibit the physical desecration of the flag of the United States, and ask for its immediate consideration.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I have a deep respect for the arguments that have been advanced by the gentleman from New York and other opponents of this amendment. I disagree with them. And I think the vast majority of the American people disagree with them as well. There has to be a line that is drawn on what is acceptable behavior and what is not acceptable behavior. Most of our criminal code, as well as certain types of civil provisions that contain penalties, do draw the line and have a clear demarcation of what goes over the line and thus should be punished. I think one of the reasons why we are here today as a result of both the Johnson and Eichman decisions was exemplified by a decision of the Supreme Court of my home State of Wisconsin on April 9, 1998, in the case of State of Wisconsin v. Matthew Janssen. Mr. Janssen was prosecuted for flag desecration because he defecated on the American flag. Then he left a note saying why he did it, which contained a political expression. Using the precedent that was set by the Supreme Court in the Johnson and Eichman cases, the Wisconsin Supreme Court unanimously affirmed the dismissal of the prosecution against Mr. Janssen and wrote an extensive decision that basically agrees with the arguments that were advanced by the gentleman from New York (Mr. Nadler). But the last paragraph of that decision, I think, is very important; and I am going to read it into the Record. The Wisconsin Supreme Court through Justice John Wilcox said: ``But in the end, to paraphrase Justice Frankfurter, we must take solace in the fact that as members of this court we are not justified in writing our private notions of policy into the Constitution, no matter how deeply we may cherish them or how mischievous we may deem their disregard,'' quoting the Barnette case with Justice Frankfurter dissenting. The Supreme Court of Wisconsin concluded by saying: ``If it is the will of the people in this country to amend the United States Constitution in order to protect our Nation's symbol, it must be done through normal political channels.'' Today, we are doing it through those normal political channels. That is why this amendment should be approved. 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 2 minutes to the gentleman from Nebraska (Mr. Osborne).

Mr. SENSENBRENNER. Mr. Speaker, I yield 5 minutes to the gentleman from Indiana (Mr. Sodrel).

Mr. SENSENBRENNER. Mr. Speaker, the points of order that the gentleman from Wisconsin has been raising have been pursuant to House rules, and we should not be waiving the rules relative to the germaneness of motions to recommit. Should the gentleman from Mississippi offer more nongermane motions to recommit, then I think it is incumbent upon me, as the manager of the bill, to raise a point of order, should the rules of the House be violated by the motion to recommit, as they have been in the past.

Mr. SENSENBRENNER. Mr. Speaker, reserving the right to object, would the gentleman restate the unanimous consent request.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself the balance of my time. Mr. Speaker, the major argument that we have heard against the base amendment and in favor of the Watt substitute is that if we do not pass the Watt substitute, we will be amending the Bill of Rights for the first time in the history of this country. That is not true. In the Dred Scott decision, Chief Justice Taney claimed that the fifth amendment's due process clause, which he interpreted to include a substantive right to the protection of property, prohibited restrictions on slave ownership. The three amendments that were passed during the Civil War, the 13th, 14th and 15th amendments, corrected that gross constitutional misinterpretation and it slammed the door shut so tightly that that issue never has been raised again; and our country has been much, much better for it. In a similar manner, House Joint Resolution 10 seeks to correct two Supreme Court precedents that repudiated 2 centuries of jurisprudence. The time to correct those two precedents is today. We must vote against the Watt substitute amendment which guts the thrust of House Joint Resolution 10 and then pass House Joint Resolution 10 by a two-thirds majority to send it to the other body. Mr. Speaker, I yield back the balance of my time.

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

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from Florida (Mr. Stearns). (Mr. STEARNS asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I make a point of order against the motion to recommit.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself the balance of my time. Mr. Speaker, the argument that has been made against this amendment is that it infringes upon free speech guaranteed by the first amendment. As all of the people who served as Justices of the Supreme Court during the 20th century, I think everybody would recognize that the strongest first amendment absolutist was Justice Hugo L. Black. Let me read you what Justice Black said in the case of Street v. New York, decided in 1969: ``It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of an American flag an offense.'' The court changed its mind twice at the end of the decade of the 1980s. I do not think that anybody's free speech rights to express whatever they want to say about a policy, about the position of the American Government, about a stand that a candidate makes, a vote that a Congressman makes is going to be infringed by the passage of this amendment. What is going to be stopped is deliberately burning the symbol of our country or otherwise desecrating it. That is what this amendment seeks to prescribe. And if you want to stop it, vote ``yes.'' If you do not, vote ``no.'' I am voting ``yes.''

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Chairman, I rise in opposition to the Baird amendment. The gentleman from Washington has been very sincere in stating that there ought to be a Constitution amendment to provide for temporary appointments to the House of Representatives in case of a tragedy. The House debated that amendment in the last Congress, and it was rejected by the resounding margin of 63 ayes to 353 noes. That should have closed the issue of having appointed Members serve, even on a temporary basis. Evidently it has not, and that is why we are debating this here today. Earlier this year, the House passed the continuity of Representation Act. It was passed overwhelming, 329 to 68, a nearly 5-to-1 margin. And those who voted for that bill in February ought to vote against the Baird amendment today. The expedited special election procedure will mean that the House will be filled up within 49 days. In this 49-day time frame, the election center has shown that there can be special elections that will have the vigorous debate that the gentleman from Washington (Mr. Baird) wants to have in terms of selecting replacement Representatives for those of us who are wiped out. But I would say that if the gentleman from Washington (Mr. Baird) has his way, we could have a House of 350 appointed Members outvoting the 85 elected Members that survive the enemy attack. That is not democracy. We would have an appointed House and perhaps an appointed Senate, and an appointed President of the United States. We ought to reject the Baird amendment. We ought to get the Continuity of Representation Act passed through the other body and made law because it is an important and vital homeland security measure.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. I strongly oppose this resolution because it does not state what the facts are relative to the Judiciary Committee's consideration of the PATRIOT Act. I rise today to respond to false, misleading, and malicious allegations that have been made by Members of this House and reported in the media concerning the conduct of the Judiciary Committee's June 10 hearing on the reauthorization of the USA PATRIOT Act and my consideration of the PATRIOT Act as chairman of the Committee on the Judiciary. Since becoming chairman of this committee in January 2001, I have consistently demonstrated a commitment to fair and equitable consideration of issues before the committee. Perhaps no other issue better demonstrates this commitment than the committee's response to the tragic events of September 11, 2001. Shortly following the attacks, I called a committee hearing to draft antiterrorism legislation at which the Attorney General and other top officials of the Justice Department testified. At that meeting, I pledged to work with the minority to draft bipartisan legislation to help detect, deter, and defeat terrorist threats to our Nation's security. Since that time, the record clearly demonstrates that I have kept my word by conducting bipartisan and evenhanded consideration of this critical issue. In October of 2001, the committee unanimously approved the PATRIOT Act by a vote of 36-0. I was enormously proud of this vote because it proved that a committee comprising sharply diverging viewpoints could speak in a clear and united voice on an issue of overwhelming importance to the security, safety, and liberty of all Americans. When drafting this legislation, I also insisted that provisions expanding the scope of Federal authority be subject to congressional reauthorization. I included sunsets in these provisions because I strongly believe that Congress must play an active and continuing role in ensuring that the PATRIOT Act protects the safety and security of all Americans while preserving the freedom and liberty that distinguish us as Americans. To ensure that the PATRIOT Act is being implemented in a manner that reflects the priorities of Congress, on multiple occasions Ranking Member Conyers and I have sent detailed, extensive, and bipartisan inquiries to the Department of Justice concerning the implementation of the legislation. When the Justice Department did not fully respond to one set of detailed inquiries, I forcefully asserted the committee's prerogatives by raising the possibility of a committee subpoena to obtain the requested information. The committee has conducted several hearings on matters related to the PATRIOT Act, at which senior administration officials have testified. At my request committee members have also received briefings on the implementation of the PATRIOT Act from senior law enforcement officials. On March 28 of this year, the gentleman from Michigan (Mr. Conyers), ranking member, and I jointly announced a series of hearings on the reauthorization of the PATRIOT Act. We made this announcement in the same spirit of bipartisanship that has typified the committee's consideration of this issue since the committee's first hearing on this subject following September 11. While the primary focus of this series of hearings has been to examine provisions in the PATRIOT Act that are set to expire at the end of this year, the scope of these hearings has been broadened to include provisions of the PATRIOT Act that will not sunset, and issues that are only tangentially related to PATRIOT Act have also received formal committee consideration at the request of the minority. The record clearly proves that I have worked in a bipartisan manner to ensure that the committee has received testimony from an array of knowledgeable witnesses of diverging viewpoints, and that members had the opportunity to address questions to each of them. And at this time I include in the Record a listing of the oversight activities and a chronology of the hearing record that has been held since April before the Committee on the Judiciary and its subcommittees. OVERSIGHT: House Judiciary Committee Oversight of the USA PATRIOT Act oversight through letters to the department of justice House Judiciary Committee sent the Attorney General, John Ashcroft, a letter on June 13, 2002, with 50 detailed questions on the implementation of the USA PATRIOT Act. The questions were a result of extensive consultation between the majority and minority Committee counsel. Assistant Attorney General, Daniel Bryant, responded to Chairman Sensenbrenner and Ranking Member Mr. Conyers on July 26, 2002, providing lengthy responses to 28 out of the 50 questions submitted. On August 26, 2002, Mr. Bryant sent the responses to the remaining questions, after sending responses to six of the questions to the House Permanent Select Committee on Intelligence. Then, on September 20, 2002, Mr. Bryant sent the minority additional information regarding the Department of Justice's responses to these questions. On April 11, 2003, Chairman Sensenbrenner and Ranking Member Mr. Conyers sent a second letter to the Department of Justice with additional questions regarding the use of pre- existing authorities and the new authorities conferred by the USA PATRIOT Act. Once again, the questions were the product of bipartisan coordination by Committee counsel. Acting Assistant Attorney General, Jamie E. Brown, responded with a May 13, 2003 letter that answered the questions she deemed relevant to the Department of Justice and forwarded the remaining questions to the appropriate officials at the Department of Homeland Security on June 13, 2003, the Assistant Secretary for Legislative Affairs at the Department of Homeland Security, Pamela J. Turner, sent responses to the forwarded questions. On November 20, 2003, Chairman Sensenbrenner and Congressman Hostettler, Chairman of the Subcommittee on Immigration, Border Security, and Claims, sent a letter to the Comptroller General of the Government Accountability Office (GAO) requesting a GAO study of the implementation of the USA PATRIOT Act anti-money laundering provisions. This report was released on June 6, 2005. oversight through hearings On May 20, 2003, the Committee's Subcommittee on the Constitution held an oversight hearing entitled, ``Anti- Terrorism Investigations and the Fourth Amendment After September 11th: Where and When Can Government Go to Prevent Terrorist Attacks.'' On June 5, 2003, the Attorney General testified before the full Committee on the Judiciary at an oversight hearing on the United States Department of Justice. Both the hearing on May 20 and the hearing on June 5 discussed oversight aspects of the USA PATRIOT Act. Ovrsight Through Briefings The Subcommittee on Crime, Terrorism, and Homeland Security of this Committee requested that officials from the Department of Justice appear and answer questions regarding the implementation of the USA PATRIOT Act. In response to our request, the Department of Justice gave two separate briefings to Members, counsel, and staff: During the briefing held on August 7, 2003, Department officials covered the long-standing authority for law enforcement to conduct delayed searches and collect business records, as well as the effect of the USA PATRIOT Act on those authorities. During the second briefing, held on February 3, 2004, the Department of Justice discussed its views of S. 1709, the ``Security and Freedom Ensured (SAFE) Act of 2003'' and H.R. 3352, the House companion bill, as both bills proposed changes to the USA PATRIOT Act. The Department of Justice has also provided three classified briefings on the use of the Foreign Intelligence Surveillance Act (FISA) under the USA PATRIOT Act for Members of the Judiciary Committee: On June 10, 2003, October 29, 2003, and June 7, 2005 the Justice Department provided these briefings. The Department also provided a law enforcement sensitive briefing on FISA to the House Judiciary Committee Members and staff on March 22, 2005. HEARING CHRONOLOGY: House Judiciary Committee Consideration of the USA

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 H.R. 744, the bill currently under consideration.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise today in support of H.R. 744, the Internet Spyware Prevention Act of 2005. This legislation clarifies and enhances criminal penalties and provides additional tools to prosecute and deter those who utilize spyware and phishing schemes to engage in illegal behavior online. Since its inception, the Internet has been transformed from an obscure research tool into an electronic medium of unprecedented reach. The impressive growth of the Internet has been facilitated by technology that has customized the online experience of Internet users. However, the same software and technology innovations that have enhanced and personalized usage of the Internet can also provide opportunities for privacy violations and criminal behavior. This bill establishes strong criminal penalties for those who engage in online criminal behavior using spyware programs and phishing schemes. This legislation enhances criminal penalties for those who obtain personally identifiable information, including a Social Security number or other government-issued identification number or a bank or credit card number with the intent to defraud or injure a person or cause damage to a protected computer. The bill also authorizes appropriations for the Justice Department to crack down on spyware, phishing, and other online schemes. As we consider this legislation, Congress must be mindful that there is no single legal regulatory or technological silver bullet to end spyware or phishing. Greater consumer awareness and utilization of commercially available countermeasures are part of the solution. Congressional efforts to curb spyware and phishing are most likely to succeed if we focus on deterring and prosecuting illegal and abusive online behavior, rather than imposing burdensome requirements upon a medium whose growth can largely be attributed to the refusal of the Federal Government to heavily regulate it. H.R. 744 does not impose a new statutory or regulatory regime that dictates the appearance of a computer's user screen, nor does it degrade the online experience by requiring that Internet users be bombarded with incessant notices. Most importantly, it does not represent a heavy-handed government mandate that may present a greater danger to the Internet than it seeks to correct. Rather, the bill preserves and promotes the integrity of the Internet by increasing criminal penalties for those who employ it to engage in abusive and illegal online activities. Targeted legislation tailored to address illegal online activity rather than an invasive regulatory regime with unknown consequences represents the right approach to addressing the problems associated with spyware and phishing. Congress ratified this approach by passing substantially similar legislation last Congress by a vote of 415-0. I would like to thank the gentleman from Virginia (Mr. Goodlatte), the author and lead proponent of H.R. 744 for his leadership on this issue. I urge my colleagues to support this legislation. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I yield 4 minutes to the gentleman from Virginia (Mr. Goodlatte), the principal author of the bill.

Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 744) to amend title 18, United States Code, to discourage spyware, and for other purposes, as amended.

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

Mr. SENSENBRENNER

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

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from Michigan (Mr. Knollenberg), the principal sponsor of the bill. (Mr. KNOLLENBERG asked and was given permission to revise and extend his remarks.)