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Congresswoman Sheila Jackson Lee

Committee on the Judiciary
Continued Oversight Hearing on the Reauthorization of the


June 10, 2005 2141 RHOB, 8:30 a.m.

Judge Learned Hand is cited to have stated that "The spirit

of liberty is the spirit which is not too sure that it is right. ..."

Mr. Chairman and Mr. Ranking Member, as you well

know, the legislation that we discuss today, the "Uniting and

Required to Intercept and Obstruct Terrorism” Act, or the “USA

PATRIOT Act” expanded law enforcement powers in the

aftermath of Sept. 11.

Sixteen (16) provisions that are due to

sunset at the end of 2005 are set for reauthorization. These

provisions include Section 213 that allows delayed notification

search warrants, Section 209's emergency disclosure of e-mails

without a court order, and the provision that allows access to

business records.

I commend the Chairman for his disposition to hold the 10

oversight hearings that have been held on these controversial

provisions. However, if my colleagues on this side of the

hearing room were to file an action based on the common law

principle of forum non conveniens, we would likely be justified

based on the fact that this hearing has been called for 8:30 a.m.

on the day following the end of votes for the week! Nevertheless, we applaud this de minimis effort to appeal to the

requests for hearings that have been made by the distinguished

Ranking Member of this body.

By way of background, I remind this body that PATRIOT

was passed into law a mere six weeks following the terrorist

attacks on September 11, 2001. The process of drafting this bill

until its signing into law by President Bush took only four days

from October 23 to October 26, 2001. The final measure, H.R.

3162, incorporated provisions of H.R. 2977, which the House

passed on October 12, 2001, and S. 1510, which the other body

passed on October 11, 2001.' While Congress grappled with the

need to act expeditiously to fight terrorism, I still marvel that a

bill more than three hundred pages long moved from


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Department of Justice and Library Association Over the USA PATRIOT Act.* 97 LLids 7 (Winter, 2005).

introduction to enactment at such a daunting speed. The process

of reauthorization seems to resemble this path.

As a law review note entitled “Playing PATRIOT Games:

National Security Challenges Civil Liberties" in the Houston

Law Review, the late Supreme Court Justice William J. Brennan

once said that “several factors lead to infringement of civil rights

during a time of crisis. First, the crisis creates a "national

fervor," which in turn leads to an exaggeration of the 'security

[blocks in formation]

enforcement to skirt the line of reasonableness. For example,

section 206 of the Patriot Act "amends FISA and eases restrictions involving domestic intelligence gathering by

allow[ing] a single wiretap to legally 'roam' from device to

device, to tap the person rather than the phone."

Also, the Act allows federal law enforcement to delay

notifying subjects of sneak-and-peek searches, as long as notice

is provided within a "reasonable" time. A sneak-and-peek search

is one in which a law enforcement official searches the premises

of a subject but delays the notification required by the Fourth

Amendment until a later time. This type of delay is allowed

when notification of the subject might have an "adverse result.""

The "reasonable" time may be extended for "good cause." These

expanded surveillance powers are especially troubling because

of their apparent contravention of the Fourth Amendment's

protection against unreasonable searches and seizures.

3. "Domestic Terrorism" Broadly Defined. "Domestic terrorism"

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