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




                  THE CIVIL LIBERTIES RESTORATION ACT

                                 ______


                         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
PATRIOT Act.
  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
legislation.

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