[Congressional Record: April 7, 2005 (Extensions)]
[Page E588]



                         HON. HOWARD L. BERMAN

                             of california

                    in the house of representatives

                        Wednesday, April 6, 2005

  Mr. BERMAN. Mr. Speaker, today, I am joined by my colleague Bill 
Delahunt (D-MA) in introducing the Civil Liberties Restoration Act.
  Three and a half years ago, following the attacks of Sept. 11th, the 
Attorney General asked Congress for a long list of new powers he felt 
were necessary to protect the United States from future terrorist 
attacks. Six weeks later, Congress granted those powers in the USA 
  I voted for the PATRIOT Act in 2001 because I felt that a number of 
its provisions provided essential tools to fight terrorism. I did so 
expecting that Congress would undertake diligent oversight of the 
Attorney General's use of the tools we provided. Unfortunately, that 
has not been the case.
  The Civil Liberties Restoration Act (CLRA) is our effort to return 
oversight to our legal system and restore the kind of checks and 
balances that are the foundation of our government.
  Since we enacted the PATRIOT Act almost, there has been tremendous 
public debate about its breadth and implications on due process and 
privacy. I do believe that there are some misperceptions about the law 
and its effects, but I also believe that many of the concerns raised 
are legitimate and worthy of review by Congress.
  The CLRA does not repeal any part of the PATRIOT Act, nor does it in 
any way impede the ability of agencies to share information. Instead, 
it inserts safeguards in a number of PATRIOT provisions.
  The bill addresses two pieces of the PATRIOT Act in particular. 
First, it ensures that when the Attorney General asks a business or a 
library for personal records, he must have reason to believe that the 
person to whom the records pertain is an agent of a foreign power. 
Second, the bill would make clear that evidence gained in secret 
searches under the Foreign Intelligence Surveillance Act (FISA) cannot 
be used against a defendant in a criminal proceeding without providing, 
at the very least, a summary of that evidence to the defendant's 
lawyers. One of my biggest concerns when we passed the PATRIOT Act was 
that the changes we made in FISA would encourage law enforcement to 
circumvent the protections of the 4th Amendment by conducting searches 
for criminal investigations through FISA authority rather than 
establishing probable cause. This provision in the CLRA does not take 
away any of the powers we provided in the PATRIOT Act. It simply 
requires that if the government wants to bring the fruits of a secret 
search into a criminal courtroom it must share the information with the 
defendant under existing special procedures for classified information.
  The Civil Liberties Restoration Act deals with more than the PATRIOT 
Act. It also addresses a number of unilateral policy actions taken by 
Attorney General Ashcroft both before and after enactment of the 
PATRIOT Act without consultation with or input from the Congress. For 
example, the Administration has undertaken the `mining' of data from 
public and non-public databases. Left unchecked, the use of these 
mining technologies threatens the privacy of every American. The CLRA 
requires that any federal agency that initiates a data-mining program 
must report to Congress within 90 days so that the privacy implications 
of that program can be monitored.

  The Attorney General unilaterally instituted a number of policies 
dealing with detention of noncitizens that we address. For example, the 
AG ordered blanket closure of immigration court hearings and prolonged 
detention of individuals without charges. The CLRA would permit those 
court hearings to be closed to protect national security on a case by-
case basis and requires that individuals be charged within 48 hours, 
unless they are certified as a threat to national security by the AG as 
mandated under the Patriot Act.
  The CLRA also addresses the special tracking program (known as 
NSEERS) created by the Attorney General, which requires men aged 16 and 
over from certain countries to be fingerprinted, photographed and 
interrogated for no specific cause. This program creates a culture of 
fear and suspicion in immigrant communities that discourages 
cooperation with antiterrorism efforts. The CLRA terminates this 
program and provides a process by which those individuals unjustly 
detained could proceed with interrupted immigration petitions. This is 
the only provision of the CLRA that eliminates a program outright, but 
this program has already been partially repealed by the Department of 
Homeland Security and largely replaced by the US VISIT system.
  When I voted for the PATRIOT Act, I understood that my vote carried 
with it a duty to undertake active oversight of the powers granted by 
the bill and carefully monitor their use. When Congress passed this 
law, Mr. Speaker, we included a sunset provision that would require us 
to reconsider and evaluate the policies we adopted. This afternoon, the 
House Judiciary Committee held its first hearing to consider these 
sunset provisions, and we heard testimony from Attorney General Alberto 
Gonzales asking that we make the sunsetted provisions of the PATRIOT 
Act permanent.
  In light of the many policies implemented unilaterally by this 
Administration since passage of the PATRIOT Act, our review of this 
Congress must go beyond just the sunset provisions in order to fulfill 
our duty of oversight. The review started today by the House Judiciary 
Committee must encompass the whole of our anti-terrorism policies. 
Congress should continue to examine whether the policies pursued by the 
Attorney General are the most effective methods to protect our nation 
from terrorists, whether they represent an efficient allocation of our 
homeland security resources, and whether they are consistent with the 
foundations of our democracy.
  Fortunately, the 9/11 Commission laid out a standard by which we can 
evaluate our current policies. First, Congress should not renew any 
provision unless the government can show, ``(a) that the power actually 
materially enhances security and (b) that there is adequate supervision 
of the executive's use of the powers to ensure protection of civil 
liberties.'' Second, the Commission advises that ``if the power is 
granted, there must be adequate guidelines and oversight to properly 
confine its use.'' This is the standard that we ought to apply across 
the board. It is the standard that Mr. Delahunt and I applied in 
drafting this legislation.
  It is my hope Mr. Speaker, that this standard will guide us in our 
work and that we will enjoy an active debate on these issues and this