(Extensions of Remarks - June 16, 2004)

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[Extensions of Remarks]
[Page E1144]
From the Congressional Record Online through the Government Publishing Office []



                         HON. HOWARD L. BERMAN

                             of california

                    in the house of representatives

                        Wednesday, June 16, 2004

  Mr. BERMAN. Mr. Speaker, today I am joined by my colleague Bill 
Delahunt (D-MA) in introducing the Civil Liberties Restoration Act. Two 
and a half years ago, following the attacks of September 11, 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 three years ago, 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 be targeting 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 
  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. 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. It is my hope that we will enjoy an active debate on these 
issues and this legislation.